Exhibit (h)(2)
CO-ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
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THIS AGREEMENT is made as of August 31, 2004 by and among PFPC Inc., a
Massachusetts corporation ("PFPC"), National City Bank ("NCB"), a national
banking association, and Armada Advantage Fund, a Massachusetts business trust
(the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC and NCB to provide
co-administration and accounting services to its investment portfolios listed on
Exhibit A attached hereto and made a part hereof, as such Exhibit A may be
amended from time to time (each a "Portfolio"), and each of PFPC and NCB wishes
to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby the parties
hereto agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
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(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Authorized Person" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Trustees
to give Oral Instructions and Written Instructions on behalf
of the Fund. An Authorized Person's scope of authority may be
limited by setting forth such limitation in a written document
signed by both parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Co-Administrators" means PFPC and NCB, collectively, and
"Co-Administrator" means PFPC or NCB, individually.
(f) "Oral Instructions" mean oral instructions received by a
Co-Administrator from an Authorized Person or from a person
reasonably believed by the Co-Administrator to be an
Authorized Person. A Co-Administrator may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(i) "Shares" means the shares of beneficial interest of any series
or class of the Fund.
(j) "Written Instructions" mean (i) written instructions signed by
an Authorized Person and received by a Co-Administrator or
(ii) trade instructions transmitted (and received by a
Co-Administrator) by means of an electronic transaction
reporting system access to which requires use of a password or
other authorized identifier. The instructions may be delivered
by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC and NCB to provide such
co-administration and accounting services to each of its Portfolios as
are customarily provided to investment companies in the industry, in
accordance with the terms set forth in Sections 15, 16, 17 and 18 of
this Agreement. Each of PFPC and NCB accepts such appointment and
agrees to furnish such services.
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3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide the Co-Administrators with the following:
(a) at a Co-Administrator's request, certified or authenticated
copies of the resolutions of the Fund's Board of Trustees,
approving the appointment of a Co-Administrator or its
affiliates to provide services to each Portfolio and approving
this Agreement;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of each Portfolio's advisory agreement or agreements;
and
(d) copies (certified or authenticated, where applicable) of any
and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS.
Each Co-Administrator undertakes to comply with all applicable
requirements of the Securities Laws, and any laws, rules and
regulations of governmental authorities having jurisdiction with
respect to it and the duties to be performed by it hereunder. Except as
specifically set forth herein, a Co-Administrator assumes no
responsibility for such compliance by the Fund or other entity. In
addition, neither Co-Administrator assumes any responsibility for such
compliance by the other Co-Administrator.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, a
Co-Administrator shall act only upon Oral Instructions or
Written Instructions.
(b) A Co-Administrator shall be entitled to rely upon any Oral
Instruction or Written Instruction it receives from an
Authorized Person (or from a person reasonably believed by a
Co-Administrator to be an Authorized Person) pursuant to this
Agreement. A Co-Administrator may assume that any Oral
Instruction or Written Instruction received hereunder is not
in any way inconsistent with the provisions of organizational
documents or this Agreement or of any vote, resolution or
proceeding of the Fund's Board of Trustees or of the Fund's
shareholders, unless and until a Co-Administrator receives
Written Instructions to the contrary.
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(c) The Fund agrees to forward to a Co-Administrator Written
Instructions confirming Oral Instructions (except where such
Oral Instructions are given by a Co-Administrator or its
affiliates) so that the Co-Administrator receives the Written
Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by the
Co-Administrator or differ from the Oral Instructions shall in
no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions or such
Co-Administrator's ability to rely upon such Oral
Instructions.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If a Co-Administrator is in doubt as to
any action it should or should not take, it may request
directions or advice, including Oral Instructions or Written
Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If a Co-Administrator shall be in doubt as
to any question of law pertaining to any action it should or
should not take, it may request advice at its own cost
(unless, given the matter in question, the parties agree that
such cost should properly be borne by the Fund) from counsel
of its own choosing (who may be counsel for the Fund, the
Fund's investment adviser or either Co-Administrator, at the
option of the Co-Administrator).
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(c) CONFLICTING ADVICE. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions a Co-Administrator receives from the Fund and the
advice it receives from counsel, a Co-Administrator may rely
upon and follow the advice of counsel. In the event a
Co-Administrator so relies on the advice of counsel, it shall
be responsible for any action or omission on its part in
carrying out such advice which constitutes willful
misfeasance, bad faith, negligence or reckless disregard by
such Co-Administrator of any duties, obligations or
responsibilities set forth in this Agreement.
(d) PROTECTION OF THE CO-ADMINISTRATORS. A Co-Administrator shall
be indemnified by the Fund and without liability for any
action it takes or does not take in reliance upon directions
or advice or Oral Instructions or Written Instructions a
Co-Administrator receives from or on behalf of the Fund or
from counsel and which a Co-Administrator believes, in good
faith, to be consistent with those directions or advice and
Oral Instructions or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation upon
a Co-Administrator (i) to seek such directions or advice or
Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions
or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of such
Co-Administrator's properly taking or not taking such action.
Nothing in this subsection shall excuse a Co-Administrator
when an action or omission on its part in carrying out such
directions, advice, Oral Instructions or Written Instructions
constitutes willful misfeasance, bad faith, negligence or
reckless disregard by such Co-Administrator of any duties,
obligations or responsibilities set forth in this Agreement.
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7. RECORDS; VISITS.
(a) The books and records pertaining to the Fund and the
Portfolios which are in the possession or under the control of
a Co-Administrator shall be the property of the Fund. Such
books and records shall be prepared and maintained as required
by the 1940 Act and other applicable laws, rules and
regulations. The Fund and Authorized Persons shall have access
to such books and records at all times during the relevant
Co-Administrator's normal business hours. Upon the reasonable
request of the Fund, copies of any such books and records
shall be provided by the relevant Co-Administrator to the Fund
or to an Authorized Person, at the Fund's expense.
(b) The Co-Administrators shall maintain and preserve the
following records:
(i) all books and records with respect to each Portfolio's
books of account;
(ii) records of each Portfolio's securities transactions;
and
(iii) all other books and records as are required to be
maintained and preserved pursuant to Rules 31a-1,
31a-2 and 31a-3 under the 1940 Act in connection with
the services provided hereunder.
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8. CONFIDENTIALITY.
(a) "Confidential Information" means all information provided by
either party (the "Originating Party") and any of its
affiliates to the other party (the "Receiving Party") in
connection with this Agreement. Confidential Information shall
include, without limitation: (i) list(s) of customer names and
addresses and other customer-related information, regardless
of whether the Originating Party's relationship with the
customer ceases, including any nonpublic personal information
as defined by federal law, including, but not limited to, the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, as it may be amended, any regulations
promulgated thereunder and any other customer information
protected by applicable state law; (ii) any data or
information that is competitively sensitive material, and not
generally known to the public, including, but not limited to,
information about product plans, marketing strategies,
finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or
future business activities of the Fund, PFPC or NCB, their
respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them; (iii) any
scientific or technical information, design, process,
procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality
affords the Fund, PFPC or NCB a competitive advantage over its
competitors; (iv) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer
software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not
patentable or copyrightable; and (v) anything designated as
confidential. Notwithstanding the foregoing, information shall
not be subject to such confidentiality obligations if it: (i)
is already known to the receiving party at the time it is
obtained; (ii) is or becomes publicly known or available
through no wrongful act of the receiving party; (iii) is
rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of
confidentiality; (iv) is released by the protected party to a
third party without restriction; (v) is required to be
disclosed by the receiving party pursuant to a requirement of
a court order, subpoena, governmental or regulatory agency or
law (provided the receiving party will provide the other party
written notice of such requirement, to the extent such notice
is permitted); (vi) is relevant to the defense of any claim or
cause of action asserted against the receiving party; or (vii)
has been or is independently developed or obtained by the
receiving party.
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(b) All Confidential Information shall be held in the strictest
confidence and will not be disclosed by either party or its
representatives, except as specifically permitted by the terms
hereof. Each party and its respective representatives will use
the Confidential Information solely for the purposes of
performing under and in compliance with the terms of this
Agreement, will not use the Confidential Information for any
other purpose, and will not disclose or communicate the
Confidential Information, directly or indirectly, to any third
party except as necessary to carry out the purpose of this
Agreement. Each party further agrees that the Confidential
Information will be disclosed only to such of its
representatives who need to examine the Confidential
Information for the purposes described above. Before being
provided with any Confidential Information, each such
representative shall be informed of the confidential nature of
the Confidential Information and shall be directed to treat
the Confidential Information confidentially. Each party shall
in any event be responsible for any breach of this Agreement
by any representative.
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(c) Each party shall take all steps reasonably necessary to keep
confidential the Confidential Information and shall take all
steps reasonably necessary to assure observation of this
Agreement by its representatives. All Confidential Information
shall remain the exclusive property of the Originating Party
or its affiliates, as applicable. Upon request by the
Originating Party, the Receiving Party shall promptly
surrender to the Originating Party any of the Confidential
Information in the Receiving Party's possession, and shall
surrender all Confidential Information to the Originating
Party promptly and without request upon the termination of
this Agreement. The Receiving Party will not retain any copies
of the Confidential Information.
(d) In the event that a Receiving Party or any of its
representatives is requested or required (by oral question,
interrogatories, requests for information or documents,
subpoenas, civil investigation or similar process) to disclose
any of the Confidential Information, such Receiving Party will
provide the Originating Party and its affiliates with prompt
notice of such requests so that the Originating Party or its
affiliates, as applicable, may seek an appropriate protective
order, or if appropriate, waive compliance with the provisions
of this Agreement. The Receiving Party will use its best
efforts to obtain or assist the Originating Party and its
affiliates in obtaining such a protective order.
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(e) Each of the parties agree that any breach or threatened breach
of the provisions of this Section 8 shall cause immediate and
irreparable injury to the other party for which there exists
no adequate remedy at law. Accordingly, the parties hereby
grant each other the right to appear at any time in any court
of law and to obtain an order enjoining and/or restraining the
Receiving Party from using and/or disclosing such Confidential
Information except as such disclosure is permitted in this
Agreement. The parties shall be bound by all provisions of
such protective order and/or any determination of a court of
competent jurisdiction.
(f) The provisions of this Section 8 shall survive termination of
this Agreement.
9. LIAISON WITH ACCOUNTANTS. A Co-Administrator shall act as liaison with
the Fund's independent public accountants and shall provide account
analyses, fiscal year summaries, and other audit-related schedules with
respect to each Portfolio. A Co-Administrator shall take all reasonable
action in the performance of its duties under this Agreement to assure
that the necessary information is made available to such accountants
for the expression of their opinion, as required by the Fund.
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10. CO-ADMINISTRATORS' SYSTEMS. PFPC shall retain title to and ownership of
any and all data bases, computer programs, screen formats, report
formats, interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC in connection with the services provided by PFPC to
the Fund. NCB shall retain title to and ownership of those data bases,
computer programs, screen formats, report formats, interactive design
techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights provided by NCB in connection
with the services provided by NCB to the Fund.
11. DISASTER RECOVERY. A Co-Administrator shall enter into and shall
maintain in effect with appropriate parties one or more agreements
making reasonable provisions for emergency use of electronic data
processing equipment to the extent appropriate equipment is available.
In the event of equipment failures, such Co-Administrator shall, at no
additional expense to the Fund, take reasonable steps to minimize
service interruptions. A Co-Administrator shall have no liability with
respect to the loss of data or service interruptions caused by
equipment failure, provided such loss or interruption is not caused by
such Co-Administrator's own willful misfeasance, bad faith, negligence
or reckless disregard of its duties or obligations under this
Agreement.
12. COMPENSATION. As compensation for services rendered by the
Co-Administrators during the term of this Agreement, the Fund, on
behalf of its respective Portfolio, will pay to the Co-Administrators a
fee or fees, and reimburse the Co-Administrators for out-of-pocket
expenses, as may be agreed to in writing by the Fund and the respective
Co-Administrators and attached as Exhibit B to this Agreement.
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13. INDEMNIFICATION. The Fund, on behalf of its Portfolios, agrees to
indemnify, defend and hold harmless each Co-Administrator and its
affiliates, including their respective officers, directors, agents and
employees from all taxes, charges, expenses, assessments, claims and
liabilities (including, reasonable attorneys' fees and disbursements
and liabilities arising under the Securities Laws and any state and
foreign securities and blue sky laws) arising directly or indirectly
from any action or omission to act which a Co-Administrator takes in
connection with the provision of services to the Fund, provided that
the Fund shall not be obligated to indemnify any such person against
any liability (or any expenses incident to such liability) caused by a
Co-Administrator's or its affiliates' own willful misfeasance, bad
faith, negligence or reckless disregard in the performance of its
activities under this Agreement. Any amounts payable by the Fund
hereunder shall be satisfied only against the relevant Portfolio's
assets and not against the assets of any other investment portfolio of
the Fund. The provisions of this Section 13 shall survive termination
of this Agreement.
14. RESPONSIBILITY OF THE CO-ADMINISTRATORS.
(a) A Co-Administrator shall be under no duty to take any action
hereunder on behalf of the Fund or any Portfolio except as
specifically set forth herein or as may be specifically agreed
to by the relevant Co-Administrator and the Fund in a written
amendment hereto. A Co-Administrator shall be obligated to
exercise care and diligence in the performance of its duties
hereunder and to act in good faith in performing services
provided for under this Agreement and the service level
standards set forth in Exhibit D attached hereto. A
Co-Administrator shall be liable only for any damages arising
out of its own failure to perform its duties under this
Agreement to the extent such damages arise out of its own
willful misfeasance, bad faith, negligence or reckless
disregard of such duties.
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(b) Notwithstanding anything in this Agreement to the contrary,
(i) a Co-Administrator shall not be liable for losses, delays,
failure, errors, interruption or loss of data occurring
directly or indirectly by reason of circumstances beyond its
reasonable control (provided such Co-Administrator has acted
in accordance with the standard of care set forth above),
including without limitation acts of God; action or inaction
of civil or military authority; public enemy; war; terrorism;
riot; fire; flood; sabotage; epidemics; labor disputes; civil
commotion; interruption, loss or malfunction of utilities,
transportation, computer or communications capabilities;
insurrection; elements of nature; or non-performance by a
third party; and (ii) a Co-Administrator shall not be under
any duty or obligation to inquire into and shall not be liable
for the validity or invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any instruction,
direction, notice, instrument or other information which a
Co-Administrator reasonably believes to be genuine.
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(c) Notwithstanding anything in this Agreement to the contrary,
neither Co-Administrator nor its affiliates shall be liable
for any consequential, special or indirect losses or damages,
whether or not the likelihood of such losses or damages was
known by such Co-Administrator or its affiliates.
(d) Any claims (including the filing of a suit or, if applicable,
commencement of arbitration proceedings) must be asserted by
the Fund against a Co-Administrator or any of its affiliates
within 24 months after the Fund became aware of the claim or
the Board of Trustees of the Fund is informed of specific
facts that should have alerted it that a basis for such a
claim might exist.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(f) The provisions of this Section 14 shall survive termination of
this Agreement.
(g) Notwithstanding anything in this Agreement to the contrary, a
Co-Administrator shall have no liability either for any error
or omission of the other Co-Administrator or any of their
predecessors as servicer on behalf of the Fund or for any
failure to discover any such error or omission.
15. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
The Co-Administrators will perform the following accounting services
with respect to each Portfolio:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from
the investment adviser for a Portfolio (the "Adviser");
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(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Fund's custodian, and provide the Adviser with the beginning
cash balance available for investment purposes;
(vi) Update the cash availability throughout the day as required by
the Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities
and the Statement of Operations;
(viii) Calculate various contractual expenses (E.G., advisory and
custody fees);
(ix) Monitor the expense accruals and notify Fund management of any
proposed adjustments;
(x) Control all disbursements, authorize such disbursements and
act as paying agent for such disbursements upon Written
Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing
services approved by the Adviser, or if such quotes are
unavailable, then obtain such prices from the Adviser, and in
either case calculate the market value of each Portfolio's
investments;
(xiv) Transmit to or make available a copy of the daily portfolio
valuation to the Adviser;
(xv) Compute net asset value;
(xvi) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity; and
(xvii) Convert and maintain historical components of equity required
to complete future net asset reports.
16. DESCRIPTION OF FINANCIAL ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
The Co-Administrators will perform the following financial
administration services with respect to each Portfolio:
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(i) Supply various normal and customary Portfolio statistical data
as requested on an ongoing basis;
(ii) Monitor, to the extent information is available to such
Co-Administrator, the accuracy of statistical information
delivered to third-party statistical agencies by the
Co-Administrator;
(iii) Prepare for execution and file the Fund's Federal and state
tax returns;
(iv) Prepare and file with the SEC the Fund's annual and
semi-annual shareholder reports;
(v) Assist in the preparation of registration statements and other
filings relating to the registration of Shares;
(vi) Monitor each Portfolio's status as a regulated investment
company under Sub-chapter M of the Internal Revenue Code of
1986, as amended;
(vii) Monitor each Portfolio's compliance with the 1940 Act and with
disclosure included in its prospectuses and statements of
additional information;
(viii) Assist in the selection of and coordinate contractual
relationships and communications between the Fund and its
contractual service providers;
(ix) Monitor the Fund's compliance with the amounts and conditions
of each state qualification;
(x) Perform accounting services required for the Trustees Deferred
Compensation Plan;
(xi) With respect to PFPC only, provide employees or officers to
serve as Treasurer of the Fund and to serve as such other
officers as the Fund may request, subject to the agreement of
PFPC;
(xii) Prepare monthly expense budgets in accordance with Fund
management specifications; and
(xiii) Monitor indices and halted securities and communicate those
issues that trigger the potential for security fair valuation
in accordance with fair value pricing procedures established
by the Fund's Board of Trustees.
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17. DESCRIPTION OF REGULATORY ADMINISTRATION SERVICES ON A CONTINUOUS
BASIS.
The Co-Administrators will perform the following regulatory
administration services with respect to each Portfolio:
(i) Prepare Post-Effective Amendments to the Fund's Registration
Statement, subject to review by and approval of the Fund's
counsel, and coordinate with the Fund's financial printer to
make such filings with the SEC;
(ii) Assist in obtaining the fidelity bond and directors' and
officers'/errors and omissions insurance policies for the Fund
in accordance with the requirements of Rules 17g-1 and 17d-1
(d) (7) under the 1940 Act as such bond and policies are
approved by the Fund's Board of Trustees;
(iii) File the Fund's fidelity bond with the SEC and monitor the
Fund's assets to assure adequate fidelity bond coverage is
maintained;
(iv) Draft agendas, resolutions and materials for quarterly and
special Board meetings subject to review and approval by the
Fund's counsel;
(v) Coordinate the preparation, assembly and mailing of Board
materials;
(vi) Attend Board meetings (and make presentations at such meetings
as appropriate) and draft minutes of such meetings (but only
if requested by NCB to do so and subject to review and
approval by the Fund's counsel);
(vii) Maintain the Fund's corporate calendar to assure compliance
with various SEC filing and Board approval deadlines;
(viii) Maintain the Fund's files; and
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(ix) Assist in monitoring regulatory developments which may affect
the Fund and assist the Funds in the handling of SEC
examinations.
18. DESCRIPTION OF DISTRIBUTION SUPPORT SERVICES.
PFPC will perform the following distribution support services:
(i) Provide marketing support services, including developing
regular marketing materials; assisting with direct marketing,
data warehouse, vendor review and recommendations, media
planning, development and recommendations, PR coordination and
event coordination and development; providing print production
coordination; and assisting in the development of sales
development materials by segment;
(ii) Provide product support services, including evaluating
specific product features offered within retirement, WRAP,
annuity and cash management products; presenting suggestions
for enhancements and potential new product development and
rollout; and evaluating the Fund's share class structure;
(iii) Provide industry research services, including providing
regulatory alerts and updates as necessary; providing white
papers and industry research; negotiating reduced rate
subscriptions to industry publications; providing access to
third-party industry research and white papers; and responding
to ad hoc requests for industry research;
(iv) Providing dealer and shareholder services, including email
response support; and
(v) Providing inbound teleservicing support.
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19. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first above
written and shall continue until August 31, 2006 (the "Initial
Term"). Thereafter, this Agreement shall continue
automatically for successive terms of one (1) year (each, a
"Renewal Term"); provided however, that this Agreement may be
terminated at the end of the Initial Term or any subsequent
date by the Fund or by a Co-Administrator on ninety (90) days'
prior written notice to the other parties. In the event the
Fund gives notice of termination, all reasonable expenses
associated with movement (or duplication) of records and
materials and conversion thereof to a successor accounting and
administration services agent(s) (and any other service
provider(s)), and all reasonable and directly related trailing
expenses incurred by the Co-Administrators, will be borne by
the Fund.
(b) If a party hereto fails in any material respect to perform its
duties and obligations hereunder (a "Defaulting Party"), the
other party (the "Non-Defaulting Party") may give written
notice thereof to the Defaulting Party, and if such material
breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting
Party may terminate this Agreement by giving thirty (30) days
written notice of such termination to the Defaulting Party.
Termination of this Agreement by the Non-Defaulting Party
shall not constitute a waiver of any other rights or remedies
with respect to obligations of the parties prior to such
termination or rights of PFPC to be reimbursed for
out-of-pocket expenses. In all cases, termination by the
Non-Defaulting Party shall not constitute a waiver by the
Non-Defaulting Party of any other rights it might have under
this Agreement or otherwise against the Defaulting Party.
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(c) The Fund may terminate this Agreement prior to the end of the
Initial Term or any Renewal Term if PFPC fails to meet the
service standards in any one category as set forth in Exhibit
D to this Agreement for (i) a period of four (4) consecutive
months or (ii) any six (6) months in a twelve (12) month
period.
20. NOTICES. Notices shall be addressed (a) if to PFPC, at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President; (b) if to
the Fund or NCB, at National City Bank, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, with a copy to W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III, Esquire,
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, One ▇▇▇▇▇ Square, 18th & Cherry Streets,
Philadelphia, Pennsylvania 19103 or (c) if to neither of the foregoing,
at such other address as shall have been given by like notice to the
sender of any such notice or other communication by the other party. If
notice is sent by confirming telegram, cable, telex or facsimile
sending device, it shall be deemed to have been given immediately. If
notice is sent by first-class mail, it shall be deemed to have been
given three days after it has been mailed. If notice is sent by
messenger, it shall be deemed to have been given on the day it is
delivered.
21. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
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22. ASSIGNMENT. PFPC may assign its rights hereunder to any majority-owned
direct or indirect subsidiary of PFPC or of The PNC Financial Services
Group, Inc., provided that (i) PFPC gives NCB and the Fund 30 days'
prior written notice of such assignment, (ii) the assignee or delegate
agrees to comply with the relevant provisions of the 1940 Act, and
(iii) PFPC and such assignee or delegate promptly provides such
information as the Fund may reasonably request and respond to such
questions as the Fund may reasonably ask, relative to the assignment or
delegation (including, without limitation, the capabilities of the
assignee or delegate).
23. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
24. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
25. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary,
the Fund agrees not to make any modifications to its
registration statement or adopt any policies which would
affect materially the obligations or responsibilities of a
Co-Administrator hereunder without the prior written approval
of a Co-Administrator, which approval shall not be
unreasonably withheld or delayed.
(b) Except as expressly provided in this Agreement, a
Co-Administrator hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other
person, including, without limitation, any warranties
regarding quality, suitability, merchantability, fitness for a
particular purpose or otherwise (irrespective of any course of
dealing, custom or usage of trade), of any services or any
goods provided incidental to services provided under this
Agreement. A Co-Administrator disclaims any warranty of title
or non-infringement except as otherwise set forth in this
Agreement.
21
(c) This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents
their agreement, if any, with respect to delegated duties. The
captions in 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. Notwithstanding any provision hereof, the services of
a Co-Administrator are not, nor shall they be, construed as
constituting legal advice or the provision of legal services
for or on behalf of the Fund or any other person.
(d) This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(e) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors
and permitted assigns.
22
(f) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such
party.
(g) To help the U.S. government fight the funding of terrorism and
money laundering activities, U.S. Federal law requires each
financial institution to obtain, verify, and record certain
information that identifies each person who initially opens an
account with that financial institution on or after October 1,
2003. Certain of PFPC's affiliates are financial institutions,
and PFPC may, as a matter of policy, request (or may have
already requested) the Fund's name, address and taxpayer
identification number or other government-issued
identification number, and, if such party is a natural person,
that party's date of birth. PFPC may also ask (and may have
already asked) for additional identifying information, and
PFPC may take steps (and may have already taken steps) to
verify the authenticity and accuracy of these data elements.
26. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATIONS. PFPC acknowledges that it may from time
to time provide certain information that is necessary to complete a
report or other filing that is required to be certified by certain of
the Fund's officers pursuant to Section 302 and 906 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the "Act") and rules and regulations
promulgated from time to time thereunder (each such report or other
filing, a "Certified Report"). PFPC agrees that any information PFPC
provides that is necessary to complete a Certified Report, to its best
knowledge, will be true and complete when given. PFPC further agrees
that any written representation or certification it provides to the
Fund and/or the officers of the Fund in support of a certification by
them to the SEC pursuant to the Act and/or any rules and regulations
issued from time to time thereunder, to its best knowledge, will be
true and correct and complete when given. This covenant shall survive
termination of this Agreement.
23
27. BUSINESS TRUST. The name Armada Advantage Fund and of any investment
portfolio thereof, and any reference to the "Trustees" of Armada
Advantage Fund, refer respectively to the Trust created and the
Trustees, as trustees but not individually or personally, acting from
time to time under the Declaration of Trust which is hereby referred to
and a copy of which is on file at the office of the State Secretary of
the Commonwealth of Massachusetts and at the principal office of the
Trust. The obligations of Armada Advantage Fund entered into in its
name, or on behalf of any of its investment portfolios, or on behalf
thereof by any of its Trustees, representatives or agents, are made not
individually, but in such capacities, and are not binding upon any of
the Trustees, shareholders or representatives of the Trust personally,
but bind only the Trust property, and all persons dealing with any
class of shares of the Trust must look solely to the Trust property
belonging to such class for the enforcement of any claims against the
Trust.
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
National City Bank
BY: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President
Armada Advantage Fund
BY: /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President
PFPC INTERNAL USE:
Business Approval/Date:
-------------------------------------
Legal Approval/Date:
---------------------------------------
25
EXHIBIT A
---------
THIS EXHIBIT A, dated as of August 31, 2004 is Exhibit A to that
certain Co-Administration and Accounting Services Agreement dated as of August
31, 2004 among PFPC Inc., National City Bank, and Armada Advantage Fund.
ARMADA ADVANTAGE FUND
PORTFOLIOS
----------
Armada Advantage Institutional Money Market Fund
26
EXHIBIT B
---------
FEE SCHEDULE
------------
Pursuant to Paragraph 12 of this Agreement, and in consideration of the
services to be provided to each Portfolio, the Fund will pay PFPC and NCB annual
fees to be calculated daily and paid monthly as set forth below:
CO-ADMINISTRATION FEE:
.07% annual fee will be calculated based upon the aggregate net assets
of the Fund, payable monthly.
OUT-OF-POCKET EXPENSES:
The Fund will reimburse PFPC and NCB for out-of-pocket expenses
incurred on the Fund's behalf, including, but not limited to, postage,
telephone, telex, overnight express charges, deconversion costs, custom
development costs, transmission expenses, travel expenses incurred for
Board meeting attendance or other travel at the request of the
Portfolios. In addition, out-of-pocket costs will include the costs to
obtain independent security market quotes.
MISCELLANEOUS:
The fee for the period from the date hereof until the end of that year
shall be prorated according to the proportion that such period bears to
the full annual period.
27
EXHIBIT C
---------
PFPC DATAPATH ACCESS SERVICES
-----------------------------
1. PFPC SERVICES
PFPC shall:
(a) Provide internet access to PFPC's DataPath ("DataPath") at
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or other site operated by PFPC (the
"Site") for Fund portfolio data otherwise supplied by PFPC to
Fund service providers via other electronic and manual
methods. Types of information to be provided on the Site
include: (i) data relating to portfolio securities, (ii)
general ledger balances and (iii) net asset value-related
data, including NAV and net asset, distribution and yield
detail (collectively, the "Accounting Services");
(b) Supply each of the Authorized Persons ("Users") with a logon
ID and Password;
(c) Provide to Users access to the information listed in
subsection (a) above using standard inquiry tools and reports.
With respect to the Accounting Services, Authorized Users will
be able to modify standard inquiries to develop user-defined
inquiry tools; however, PFPC will review computer costs for
running user-defined inquiries and may assess surcharges for
those requiring excessive hardware resources. In addition,
costs for developing significant custom reports or
enhancements are not included in the fees set forth in Section
12 of the Agreement and will be billed separately;
(d) Utilize a form of encryption that is generally available to
the public in the U.S. for standard internet browsers and
establish, monitor and verify firewalls and other security
features (commercially reasonable for this type of information
and these types of users) and exercise commercially reasonable
efforts to attempt to maintain the security and integrity of
the Site; and
(e) Monitor the telephone lines involved in providing the
Accounting Services and inform the Funds promptly of any
malfunctions or service interruptions.
1. DUTIES OF THE FUND, NCB AND THE USERS
The Fund, NCB and/or the Users, as appropriate, shall:
28
(a) Provide and maintain a web browser supporting Secure Sockets
Layer 128-bit encryption; and
(b) Keep logon IDs and passwords confidential and notify PFPC
immediately in the event that a logon ID or password is lost,
stolen or if you have reason to believe that the logon ID and
password are being used by an unauthorized person.
3. STANDARD OF CARE; LIMITATIONS OF LIABILITY
(a) The Fund and NCB acknowledges that the Internet is an "open,"
publicly accessible network and not under the control of any
party. PFPC's provision of Accounting Services is dependent
upon the proper functioning of the Internet and services
provided by telecommunications carriers, firewall providers,
encryption system developers and others. The Fund and NCB
agrees that PFPC shall not be liable in any respect for the
actions or omissions of any third party wrongdoers (i.e.,
hackers not employed by such party or its affiliates) or of
any third parties involved in the Accounting Services and
shall not be liable in any respect for the selection of any
such third party, unless that selection constitutes a breach
of PFPC's standard of care set forth in Section 14 of the
Agreement.
(b) Without limiting the generality of the foregoing or limiting
the applicability of any other provision of this Exhibit B or
the Agreement, including Sections 11, 14(a) and 14(b), PFPC
shall not be liable for delays or failures to perform any of
the Accounting Services or errors or loss of data occurring by
reason of circumstances beyond such party's control, which may
include: functions or malfunctions of the internet or
telecommunications services, firewalls, encryption systems or
security devices.
29
EXHIBIT D
---------
ARMADA ADVANTAGE FUND
SERVICE STANDARDS
-----------------
(Standards shall be measured on a monthly basis)
FUND ACCOUNTING AND ADMINISTRATION SERVICES
-------------------------------------------
CATEGORY - FUND ACCOUNTING
1. Number of Accurate NAV's Reported to the Fund's transfer agent (the
"Transfer Agent") divided by the Total Number of NAV's Required to Report
to the Transfer Agent (excluding Money Market Funds): 98%
o "NAV" for this purpose is class net assets divided by total
class shares outstanding. An NAV is not accurate if, upon
recalculation, the change in the reported extended class NAV
is greater than a full ▇▇▇▇▇.
o Each NAV error for a given day is treated as a single NAV
error.
2. Number of accurate NAV's Reported to NASDAQ divided by Number of Total
NAV's Required to be Reported to NASDAQ (excluding Money Market Funds): 98%
o NAV for this purpose is class net assets divided by total
class shares outstanding. An NAV is not accurate if, upon
recalculation, the NAV difference is greater than a full
▇▇▇▇▇.
o Each NAV error for a given day is treated as a single NAV
error.
3. Accurate and Timely Cash Availability Reports ("CAR") to the Adviser
Divided by Number of Portfolios Requiring Cash Availability Reporting: 99%
o Timely CAR means, notwithstanding any other clause to the
contrary, delivery by 10:45 a.m. (Eastern Time) for all
Portfolios with the except of the following Portfolios, which
require delivery by 10:15 a.m. (Eastern Time):
[Equity Index Fund
International Equity Fund
Ohio Tax Exempt Bond Fund
Pennsylvania Municipal Bond Fund
Michigan Municipal Bond Fund
National Tax Exempt Bond Fund]
30
o Accurate CAR means errors controllable by a Co-Administrator
that resulted in an overdraft to the Portfolios.
4. Number of accurate data elements (NAVs, yields and performance) delivered
to the website divided by the total number of individual data elements
delivered: 98%
o Since these extracts are system generated, a properly approved
NAV would be deemed to be accurately delivered if it were
subsequently realized to be calculated in error. This error
would effect the calculation in #1 above.
5. Notify the Adviser of compliance violations identified through the normal
quantitative secondary compliance tests performed for each Portfolio no
later than the second business day following the receipt of accurate and
complete trade information by PFPC: 100%
6. Final annual and semiannual shareholder reports shall contain no material
errors: 100%
o For purposes of this performance standard, a "material error"
shall be one that requires a reprint of the report.
Note: For purposes of the foregoing calculations, the Portfolios of the Fund
will be aggregated.
DISTRIBUTION SUPPORT SERVICES
-----------------------------
CATEGORY - TELESERVICING:
o 85% Monthly Service Level
o PFPC will maintain an abandon call rate of 2% or less on inbound calls,
counting only days on which the Funds operate under normal market
conditions (100%). Normal conditions defined as an average of 75 calls
a day, Monday - Friday 8:00 a.m. to 8:00 p.m. (This does not include
circumstances such as above-average call volumes due to market
dynamics, extreme market swings or the results of unexpected PR). PFPC
will be given advanced notice (5 days or more) of any fund
communications or marketing campaigns to accommodate potential
increases in call volumes.
o PFPC will answer telephone calls (measured by calendar month) with an
average speed to answer of 20 seconds or less, counting only days on
which the Fund operates under normal market conditions. (100%)
31
o Email Response Rate of 100% within same business day. Contingent upon
receiving all information and research needed to respond. Armada to be
provided with copies of PFPC responses on a monthly basis.
o Monitor and provide summary of 5 calls per month per primary rep.
o Monthly Call Log: # and nature of complaints to be provided to Armada
on a Monthly basis.
o Monthly CCQ (Call Center Quality) Scorecard
CATEGORY - MARKETING/COMMUNICATIONS
Monthly Cycle
o PFPC will release the web and print versions of the monthly performance
summary updates by the 5th business day after the month-end (this does
not include time to print/distribute and depends upon correct receipt
of data feeds between Fund Accounting and SySys).
o PFPC will release the web updates of the fund snapshots by the 7th
business day after the month-end. Based on the release of schedule of
the indices. Contingent on timely receipt of data.
o PFPC will release the fund family web updates, the web Morningstar
updates and the print version of the Morningstar flyers by the 5th
business day following receipt of final data from Morningstar.
Turnaround contingent on timely receipt of Morningstar data.
Quarterly Cycle
o PFPC will release the web and print versions of fund snapshots by the
7th business day after the quarter-end (this does not include time to
print/distribute). Based on the release schedule of indices. Contingent
on timely receipt of data.
o PFPC will release the full product guides to print (fund snapshots, S&P
flyers, and overview text) by the 15th business day after the
quarter-end, or within 5 business days of receipt of complete overview
text and S&P data (this does not include time to print/distribute).
Based on the release schedule of indices and other data elements.
Contingent on timely receipt of data.
Monthly Inventory Report
o Deliver a monthly "intelligent" inventory status report for fulfillment
items, marketing collateral and premium items including usage, date of
piece, and related kits. PFPC will provide recommendations whether to
revise, reprint or eliminate from inventory as part of this report.
Contingent on RR ▇▇▇▇▇▇▇▇ and Imagraphics data delivery to PFPC.
32
New Marketing Projects
o PFPC will prepare a brief on all new marketing initiatives outlining
the scope of the project, responsibilities, timeframes and cost. This
will be delivered to Armada within 10-15 days of receipt of pertinent
information from the business owner.
CATEGORY - NASD MARKETING REVIEW:
o Provide status update on Broker Dealer Agreements to Armada on a weekly
basis based upon information received from the Fund's underwriter.
o To cause the review and submission of documents to the NASD by the
Fund's underwriter. Once marketing materials are in final format they
will be submitted to the NASD within 10 days of first use. (100%)
o A marketing budget report will be provided to the Fund by the 25th
calendar day after the end of each month. (100%)
o ADVERTISING STANDARDS: Response times assume no more than 75 pages are
under review on any one day, and assumes complete submissions with all
necessary backup to render the review. If more than 75 pages under
review on any day, PFPC will contact the Fund to set priorities. No
material will remain outstanding for more than 7 business days.
Standards will be met 95% of the time.
Under 10 pages 2 business days
10-25 pages 3 business days
25+ pages 5 business days
o 12B-1 / MARKETING BILLS:
~ Communicate with the Fund's underwriter to ensure that checks will be cut at
last once a week
~ 12b-1 Spreadsheet reporting status to be provided weekly \
~ Monthly budget on 12b-1 and non-12b-1 expenses
o NASD Training: To be provided annually on site at NCB.
CATEGORY - STRATEGIC RESEARCH AND PLANNING
33
o Research Standards: All Fund research requests will be made in writing
by the project owner to the head of research. A follow-up call will be
made by PFPC to the project owner to define parameters of the project
in detail. A project assessment of resources and scope will be made to
the client within 5 business days following the initial discussion.
Each item will be documented on the PIC report and prioritized by the
Fund. Actual completion dates will be based on priorities in queue.