Form Of ADMINISTRATIVE AGENCY AGREEMENT
THIS AGREEMENT is made as of [ ] by and between ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO., a limited partnership organized under the laws of the State of New York (the “Administrator”), and [__________________], a [Massachusetts business trust/Delaware statutory trust/Maryland corporation] (the “Fund” on behalf of each series listed on Appendix A to this Agreement each a “Portfolio” and collectively, the “Portfolios”) and registered with the Securities and Exchange Commission under the Investment Company Act of 1940 (“the 1940 Act”) (the “Fund” ).
WITNESSETH:
WHEREAS, the Fund is registered with the United States Securities and Exchange Commission as a management investment company under the Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, the Fund desires to retain the Administrator to render certain services to the Fund, and the Administrator is willing to render such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the parties hereto agree as follows:
1. Appointment of Administrator. The Fund hereby employs and appoints the Administrator to act as its administrative agent on the terms set forth in this Agreement, and the Administrator accepts such appointment.
2. Delivery of Documents. The Fund will on a continuing basis provide the Administrator with:
| 2.1 | properly
certified or authenticated copies of resolutions of the Fund’s Board of Directors
or Trustees authorizing the appointment of the Administrator as administrative agent
of the Fund and approving this Agreement; |
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| 2.2 | a copy of the Fund’s most recent registration statement; | |
| 2.3 | copies
of all agreements between the Fund and its service providers, including without
limitation, advisory, distribution and administration agreements and distribution
and/or shareholder servicing plans; |
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| 2.4 | a copy of the Fund’s valuation procedures; | |
| 2.5 | a copy of the Fund’s Articles of Incorporation/Declaration of Trust and By-laws; |
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| 2.6 | any other
documents or resolutions (including but not limited to directions or resolutions
of the Fund’s Board of Directors or Trustees) which relate to or affect the
Administrator’s performance of its duties hereunder or which the Administrator
may at any time reasonably request; and |
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| 2.7 | copies of any and all amendments or supplements to the foregoing. |
3. Duties as Administrator. Subject to the supervision and direction of the Fund’s Board of Directors or Trustees, the Administrator will perform the administrative services described in Appendix B hereto. Additional services may be provided by the Administrator upon the request of the Fund as mutually agreed from time to time. In performing its duties and obligations hereunder, the Administrator will act in accordance with the Fund’s instructions as defined in Section 5 (“Instructions”). It is agreed and understood that the Administrator shall not be responsible for the Fund’s compliance with any applicable documents, laws or regulations, or for losses, costs or expenses arising out of the Fund’s failure to comply with said documents, laws or regulations or the Fund’s failure or inability to correct any non-compliance therewith. The Administrator shall in no event be required to take any action, which is in contravention of any applicable law, rule or regulation or any order or judgment of any court of competent jurisdiction.
3.1
Records. The Administrator will maintain and retain such
records as required by the 1940 Act and other applicable federal securities laws
and created pursuant to the performance of the Administrator’s obligations
under this Agreement. The Administrator will maintain such other records as requested
by the Fund and received by the Administrator. The Administrator shall not be responsible
for the accuracy and completeness of any records not created by the Administrator.
The Administrator acknowledges that the records maintained and preserved by the
Administrator pursuant to this Agreement are the property of the Fund and will be,
at the Fund’s expense, surrendered promptly upon reasonable request. In performing
its obligations under this Section, the Administrator may utilize micrographic and
electronic storage media as well as independent third party storage facilities. |
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3.2 Use of Agents The Administrator may at any time or times in its discretion appoint (and may at any time remove) any other affiliate, bank, trust fund or subcontractor as its agent (each an “Agent” and collectively, the “Agents”), to carry out such provisions of this Agreement as it may from time to time direct, including in connection with use of any Securities System. The Administrator shall exercise reasonable care in the selection and monitoring of such Agents and Subcustodians. The appointment of an Agent or Subcustodian shall not relieve the Administrator of its obligations under this Agreement. |
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4. Duties of the Fund. The Fund shall notify the Administrator promptly of any matter affecting the performance by the Administrator of its services under this Agreement and where the Administrator is providing fund accounting services pursuant to this Agreement shall promptly notify the Administrator as to the accrual of liabilities of the Fund, liabilities of the Fund not appearing on the books of account kept by the Administrator as to the existence, status and proper treatment of reserves, if any, authorized by the Fund. Where the Administrator is providing portfolio compliance monitoring services pursuant to this Agreement, the Fund agrees to notify the Administrator in the event the Fund or any officer, employee or agent of the Fund detects a possible non-compliance of the Fund with its investment restrictions, policies and limitations. The Fund agrees to provide such information to the Administrator as may be requested under the banking and securities laws of the United States or other jurisdictions relating to “Know Your Customer” and money laundering prevention rules and regulations (collectively, the “KYC Requirements”). For purposes of this subsection, and in connection with all applicable KYC Requirements, the Fund and each Portfolio is the “client” or “customer” of the Administrator. The Fund further represents that it will perform all obligations required under applicable KYC Requirements with respect to its “customers” (as defined in the KYC Requirements) and that, because these customers do not constitute “customers” or “clients” of the Administrator under such applicable rules and regulations, the Administrator is under no such similar obligations.
| 5. | Instructions. | |
5.1
The Administrator shall not be liable for, and shall be indemnified by the Fund
against any and all losses, costs, damages or expenses arising from or as a result
of, any action taken or omitted in reliance upon Instructions or upon any other
written notice, request, direction, instruction, certificate or other instrument
believed by it to be genuine and signed or authorized by the proper party or parties.
A list of persons so authorized by the Fund (“Authorized Persons”) is
attached hereto as Appendix C and upon which the Administrator may rely until its
receipt of notification to the contrary by the Fund. |
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5.2 Instructions
shall include a written request, direction, instruction or certification signed
or initialed on behalf of the Fund by one or more persons as the Board of Directors
or Trustees of the Fund shall have from time to time authorized in writing. Those
persons authorized to give Instructions may be identified by the Board of Directors
or Trustees by name, title or position and will include at least one officer empowered
by the Board to name other individuals who are authorized to give Instructions on
behalf of the Fund. |
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5.3 Telephonic
or other oral instructions or instructions given by telefax transmission may be
given by any one of the above persons and will also be considered Instructions if
the Administrator believes them to have been given by a person authorized to give
such Instructions with respect to the transaction involved. |
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5.4 With
respect to telefax transmissions, the Fund hereby acknowledges that (i) receipt
of legible instructions cannot be assured, (ii) the Administrator cannot verify
that authorized signatures on telefax instructions are original, and (iii) the Administrator
shall not be responsible for losses or expenses incurred through actions taken in
reliance on such telefax instructions. The Fund agrees that such telefax instructions
shall be conclusive evidence of the Fund’s Instruction to the Administrator
to act or to omit to act. |
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5.5 Instructions
given orally will not be confirmed in writing and the lack of such confirmation
shall in no way affect any action taken by the Administrator in reliance upon such
oral Instructions. The Fund authorizes the Administrator to tape record any and
all telephonic or other oral Instructions given to the Administrator by or on behalf
of the Fund (including any of its officers, directors, trustees, employees or agents
or any investment manager or adviser or person or entity with similar responsibilities
which is authorized to give Instructions on behalf of the Fund to the Administrator.) |
6. Expenses and Compensation. For the services to be rendered and the facilities to be furnished by the Administrator as provided for in this Agreement, the Fund shall pay the Administrator for its services rendered pursuant to this Agreement a fee based on such fee schedule as may from time to time be agreed upon in writing by the Fund and the Administrator. Additional services performed by the Administrator as requested by the Fund shall be subject to additional fees as mutually agreed from time to time. In addition to such fee, the Administrator shall ▇▇▇▇ the Fund separately for any out-of-pocket disbursements of the Administrator based on an out-of-pocket schedule as may from time to time be agreed upon in writing by the Fund and the Administrator. The foregoing fees and disbursements shall be billed to the Fund by the Administrator and shall be paid promptly by wire transfer or other appropriate means to the Administrator.
7. Standard of Care. The Administrator shall be held to the exercise of reasonable care and diligence in carrying out the provisions of this Agreement, provided that the Administrator shall not thereby be required to take any action which is in contravention of any applicable law, rule or regulation or any order or judgment of any court of competent jurisdiction.
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8. General Limitations on Liability. The Administrator shall incur no liability with respect to any telecommunications, equipment or power failures, or any failures to perform or delays in performance by postal or courier services or third-party information providers (including without limitation those listed on Appendix D).
8.1 The Administrator
shall also incur no liability under this Agreement if the Administrator or any agent
or entity utilized by the Administrator shall be prevented, forbidden or delayed
from performing, or omits to perform, any act or thing which this Agreement provides
shall be performed or omitted to be performed, by reason of causes or events beyond
its control, including but not limited to: |
8.1.1 any
Sovereign Event. A “Sovereign Event” shall mean any nationalization; expropriation;
devaluation; revaluation; confiscation; seizure; cancellation; destruction; strike;
act of war, terrorism, insurrection or revolution; or any other act or event beyond
the Administrator’s control; |
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8.1.2 any
provision of any present or future law, regulation or order of the United States
or any state thereof, or of any foreign country or political subdivision thereof,
or of any securities depository or clearing agency; and |
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8.1.3 any
provision of any order or judgment of any court of competent jurisdiction. |
8.2
The Administrator shall not be held accountable or liable for any losses, damages
or expenses the Fund or any shareholder or former shareholder of the Fund or any
other person may suffer or incur arising from acts, omissions, errors or delays
of the Administrator in the performance of its obligations and duties as provided
in Section 3 hereof, including without limitation any error of judgment or mistake
of law, except a damage, loss or expense directly resulting from the Administrator’s willful malfeasance, bad faith or negligence in the performance of such Administrator’s obligations and duties. |
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8.3 In no
event and under no circumstances shall the Administrator be held liable to the other
party for consequential or indirect damages, loss of profits, damage to reputation
or business or any other special or punitive damages arising under or by reason
of any provision of this Agreement or for any act or omissions hereunder, even if
the Administrator has been advised of the possibility of such damages or losses. |
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9. Specific Limitations on Liability. In addition to, and without limiting the application of the general limitations on liability contained in Section 8, above, the following specific limitations on the Administrator’s liability shall apply to the particular administrative services set forth on Appendix B hereto.
9.1 Portfolio
Compliance Monitoring. The compliance monitoring of the investments of the
Fund and/or each Portfolio with respect to investment restrictions and policies
is subject to parameters that may vary over time and which may be beyond the control
or knowledge of the Administrator. Consequently, the results of the monitoring as
notified by the Administrator to the Fund are to be considered merely as an indication
of possible non-compliance with the investment restrictions and policies of the
Fund and/or Portfolio rather than an affirmative statement as to non-compliance
with the investment restrictions and policies. Moreover, the Administrator may not
detect a breach and consequently might not notify the Fund thereof if information
or data in its possession is inaccurate, incomplete or ambiguous. The Board of Directors
of the Fund shall remain fully responsible for ensuring compliance of the investments
of the Fund and each Portfolio with its investment restrictions and policies and
the services provided by the Administrator in monitoring investment restrictions
and policies shall not be deemed to be a delegation of the Board’s responsibility
to the Administrator. In addition, the Fund agrees that the Administrator shall
not be liable for the accuracy, completeness or use of any information or data that
CRD (as defined in Appendix B hereof) or any other compliance system used by the
Administrator generates in connection with such administrative compliance monitoring
on any given date. |
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9.2
Liability for Fund Accounting Services. Without limiting
the provisions in Section 8 hereof, the Administrator’s liability for acts,
omissions, errors or delays relating to its fund accounting obligations and duties
shall be limited to the amount of any expenses associated with a required recalculation
of net asset value per share (“NAV”) or any direct damages suffered by
shareholders in connection with such recalculation. The Administrator’s liability
or accountability for such acts, omissions, errors or delays shall be further subject
to clauses 9.2.1 through 9.2.4 below. |
9.2.1.
The parties hereto acknowledge that the Administrator’s causing an error or
delay in the determination of NAV may, but does not in and of itself, constitute
negligence or reckless or willful misconduct. The parties further acknowledge that
in accordance with industry practice, the Administrator shall be liable and the
recalculation of NAV shall be performed only with regard to errors in the calculation
of the NAV that are greater than or equal to $.01 per share of a Fund. If a recalculation
of NAV occurs, the Fund agrees to reprocess shareholder transactions or take such
other action(s) so as to eliminate or minimize to the extent possible the liability
of the Administrator. |
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9.2.2.
In no event shall the Administrator be liable or responsible to the Fund, any present
or former shareholder of the Fund, or any other person for any error or delay that
continued or was undetected after the date of an audit performed by the certified
public accountants employed by the Fund if, in the exercise of reasonable care in
accordance with generally accepted accounting standards, such accountants should
have become aware of such error or delay in the course of performing such audit. |
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9.2.3 The
Administrator shall not be held accountable or liable to the Fund, any shareholder
or former shareholder thereof or any other person for any delays or losses, damages
or expenses any of them may suffer or incur resulting from (i) the Administrator’s usage of a third party service provider for the purpose of storing records
delivered to the Administrator by the Fund and which the Administrator did not create
in the performance of its obligations hereunder; (ii) the Administrator’s failure
to receive timely and suitable notification concerning quotations or corporate actions
relating to or affecting portfolio securities of the Fund; or (iii) any errors in
the computation of NAV based upon or arising out of quotations or information as
to corporate actions if received by the Administrator either (a) from a source which
the Administrator was authorized to rely upon (including, but not limited to, the
fair value pricing procedures of any investment manager of adviser of the Fund and
those sources listed on Appendix D), (b) from a source which in the Administrator’s reasonable judgment was as reliable a source for such quotations or information
as such authorized sources, or (c) relevant information known to the Fund or its
service provider which would impact the calculation of NAV but which is not communicated
by the Fund or its service providers to the Administrator. To the extent that Fund
assets are not in the custody of the Administrator, the Administrator may conclusively
rely on any reporting in connection with such assets provided to the Administrator
by a third party on behalf of the Fund. |
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9.2.4. In
the event of any error or delay in the determination of such NAV for which the Administrator
may be liable, the Fund and the Administrator will consult and make good faith efforts
to reach agreement on what actions should be taken in order to mitigate any loss
suffered by the Fund or its present or former shareholders, in order that the Administrator’s exposure to liability shall be reduced to the extent possible after taking
into account all relevant factors and alternatives. It is understood that in attempting
to reach agreement on the actions to be taken or the amount of the loss which should
appropriately be borne by the Administrator, the Fund and the Administrator will
consider such relevant factors as the amount of the loss involved, the Fund’s
desire to avoid loss of shareholder good will, the fact |
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that other
persons or entities could have been reasonably expected to have detected the error
sooner than the time it was actually discovered, the appropriateness of limiting
or eliminating the benefit which shareholders or former shareholders might have
obtained by reason of the error, and the possibility that other parties providing
services to the Fund might be induced to absorb a portion of the loss incurred. |
10. Indemnification. The Fund hereby agrees to indemnify the Administrator against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any act, omission, error or delay or any claim, demand, action or suit, in connection with or arising out of performance of its obligations and duties under this Agreement, not resulting from the willful malfeasance, bad faith or negligence of the Administrator in the performance of such obligations and duties. The provisions of this Section 10 shall survive the termination of this Agreement.
11. Reliance by the Administrator on Opinions of Counsel and Opinions of Certified Public Accountants.
The Administrator may consult with its counsel or the Fund’s counsel in any case where so doing appears to the Administrator to be necessary or desirable. The Administrator shall not be considered to have engaged in any misconduct or to have acted negligently and shall be without liability in acting upon the advice of its counsel or of the Fund’s counsel.
The Administrator may consult with a certified public accountant or the Fund’s Treasurer in any case where so doing appears to the Administrator to be necessary or desirable. The Administrator shall not be considered to have engaged in any misconduct or to have acted negligently and shall be without liability in acting upon the advice of such certified public accountant or of the Fund’s Treasurer.
12. Termination of Agreement. This Agreement may be terminated by either party in accordance with the provisions of this Section
12.1 This
Agreement shall have an initial term of three (3) years from the date hereof. Thereafter,
this Agreement shall automatically renew for successive one (1) year periods unless
either party terminates this Agreement by written notice effective no sooner than
seventy-five (75) days following the date that notice to such effect shall be delivered
to the other party at its address set forth herein. Notwithstanding the foregoing
provisions, either party may terminate this Agreement at any time (a) |
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for cause,
which as a material breach of the Agreement not cured within sixty (60) days, in
which case termination shall be effective upon written receipt of notice by the
non-terminating party, or upon thirty (30) days written notice to the other party
in the event that the either party is adjudged bankrupt or insolvent, or there shall
be commenced against such party a case under any applicable bankruptcy, insolvency,
or other similar law now or hereafter in effect. In the event a termination notice
is given by a party hereto, all expenses associated with the movement of records
and materials and the conversion thereof shall be paid by the Fund for which services
shall cease to be performed hereunder. The Administrator shall be responsible for
completing all actions in progress when such termination notice is given unless
otherwise agreed. |
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12.2. Upon
termination of the Agreement in accordance with this Section 12, the Fund may request
the Administrator to promptly deliver to the Fund or to any designated third party
all records created and maintained by the Administrator pursuant to Section 3.1
of this Agreement, as well as any Fund records maintained but not created by the
Administrator. If such request is provided in writing by the Fund to the Administrator
within seventy-five (75) days of the date of termination of the Agreement, the Administrator
shall provide to the Fund a certification that all records created by the Administrator
pursuant to its obligations under Section 3.1 of this Agreement are accurate and
complete. After seventy-five (75) days of the date of termination of this Agreement,
no such certification will be provided to the Fund by the Administrator and the
Administrator is under no further obligation to ensure that records created by
the Administrator pursuant to Section 3.1 of this Agreement are maintained in a
form that is accurate or complete. |
13. Confidentiality. The parties hereto agree that each shall treat confidentially the terms and conditions of this Agreement and all information provided by each party to the other regarding its business and operations. All confidential information provided by a party hereto shall be used by any other party hereto solely for the purpose of rendering or obtaining services pursuant to this Agreement and, except as may be required in carrying out this Agreement (including, without limitation, disclosure to Subcustodians or Agents appointed by the Administrator), shall not be disclosed to any third party without the prior consent of such providing party. The foregoing shall not be applicable to any information that is publicly available when provided or thereafter becomes publicly available other than through a breach of this Agreement, or that is required to be disclosed by or to any regulator of the Administrator or any Agent or Subcustodian, any
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Regulatory Authority, any auditor or attorney of the parties hereto, or by judicial or administrative process or otherwise by Applicable Law.
14. Tape-recording. The Fund authorizes the Administrator to tape record any and all telephonic or other oral instructions given to the Administrator by or on behalf of the Fund, including from any Authorized Person. This authorization will remain in effect until and unless revoked by the Fund in writing. The Fund further agrees to solicit valid written or other consent from any of its employees with respect to telephone communications to the extent such consent is required by applicable law.
15. Entire Agreement; Amendment. This Agreement constitutes the entire understanding and agreement of the parties hereto and supersedes any other oral or written agreements heretofore in effect between the parties with respect to the subject matter hereof. No provision of this Agreement may be amended or terminated except by a statement in writing signed by the party against which enforcement of the amendment or termination is sought.
16. Severability. In the event any provision of this Agreement is determined to be void or unenforceable, such determination shall not affect the remainder of this Agreement, which shall continue to be in force.
17. Headings. The section headings in this Agreement are for the convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions thereof.
18. Governing Law. This Agreement shall be governed by and construed according to the laws of the Commonwealth of Massachusetts without giving effect to conflicts of laws principles and each of the parties hereto irrevocably consents to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts in the City of Boston and the federal courts located in the City of Boston. The fund irrevocably waives any objection it may now or hereafter have to the laying of venue of any action or proceeding in any of the aforesaid courts and any claim that any such action or proceeding has been brought in an inconvenient forum. Furthermore, each party hereto irrevocably waives any right that it may have to trial by jury in any action, proceeding or counterclaim arising out of or related to this Agreement or the services contemplated hereby.
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19. Notices. Notices and other writings delivered or mailed postage prepaid to the Fund addressed to the Fund at [ ] or to such other address as the Fund may have designated to the Administrator in writing, or to the Administrator at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Manager, Fund Administration Department, or to such other address as the Administrator may have designated to the Fund in writing, shall be deemed to have been properly delivered or given hereunder to the respective addressee.
20. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Fund and the Administrator and their respective successors and assigns, provided that no party hereto may assign this Agreement or any of its rights or obligations hereunder without the written consent of the other party. Each party agrees that only the parties to this Agreement and/or their successors in interest shall have a right to enforce the terms of this Agreement. Accordingly, no client of the Fund or other third party shall have any rights under this Agreement and such rights are explicitly disclaimed by the parties.
21. Counterparts. This Agreement may be executed in any number of counterparts each of which shall be deemed to be an original. This Agreement shall become effective when one or more counterparts have been signed and delivered by each of the parties. A photocopy or telefax of the Agreement shall be acceptable evidence of the existence of the Agreement and the Administrator shall be protected in relying on the photocopy or telefax until the Administrator has received the original of the Agreement.
22. Exclusivity. The services furnished by the Administrator hereunder are not to be deemed exclusive, and the Administrator shall be free to furnish similar services to others.
23. Authorization. The Fund hereby represents and warrants that the Fund’s Board of Directors or Trustees has authorized the execution and delivery of this Agreement and that an authorized officer of the Fund has signed this Agreement, Appendices A, B, C, and D and the fee schedule hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first written above.
The undersigned acknowledges that (I/we) have received a copy of this document.
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▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
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APPENDIX A
TO
ADMINISTRATIVE AGENCY AGREEMENT
Dated as of August 15, 2014
The following is a list of Portfolios for which the Administrator shall serve under an Administrative Agency Agreement dated as of August 15, 2014:
Toreador International Fund
European Equity Fund
▇▇
Dated as of August 15, 2014
| • | Investment taxlots | ||
| • | Income | ||
| • | Dividends | ||
| • | Principal paydowns | ||
| • | Capital activity | ||
| • | Expense accruals | ||
| • | Cash activity | ||
| • | Corporate Reorganizations |
| • | Securities holdings | ||
| • | Cash including cash transfers, fees assessed and other investment related cash transactions | ||
| • | Trade settlements |
| • | Market prices obtained from approved sources including those listed on Appendix D or Fair Valuations obtained from an Authorized Person of the Investment Manager | ||
| • | ▇▇▇▇ to market of non-base receivables/payables utilizing approved foreign exchange quotations as quoted in Appendix D | ||
| • | ▇▇▇▇ to market of non-base currency positions utilizing the approved sources quoted in Appendix D or Fair Valuations obtained from an Authorized Person of the Investment Manager |
| • | Amortization/accretion at the individual tax lot level | ||
| • | General ledger entries | ||
| • | Book value calculations | ||
| • | Trade Date + 1 accounting | ||
| • | Calculation of Net Asset Value Per Share (“NAV”) as of the close of business of the NYSE |
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▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
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