ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 1st day of October, 1996, by and
between THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST, a Delaware business trust (the "Trust"),
and BISYS FUND SERVICES LIMITED PARTNERSHIP, d/b/a BISYS FUND SERVICES (the
"Administrator"), an Ohio limited partnership.
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of several series of shares of beneficial interest
("Shares"); and
WHEREAS, the Trust desires the Administrator to provide, and the
Administrator is willing to provide administrative services to such series of
the Trust as the Trust and the Administrator may agree on ("Portfolios") and
as listed on Schedule A attached hereto and made a part of this Agreement, on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Trust and the Administrator hereby agree as
follows:
ARTICLE 1. RETENTION OF THE ADMINISTRATOR; CONVERSION TO THE
SERVICES. The Trust hereby engages the Administrator to act as the
administrator of the Portfolios and to furnish the Portfolios with the
administrative services as set forth in Article 2 below (collectively, the
"Services"), and, in connection therewith, the Trust agrees to convert to the
Administrator's data processing systems and software (the "BISYS System") as
necessary in order to receive the Services. The Trust shall cooperate with
the Administrator to provide the Administrator with all necessary information
and assistance required to successfully convert to the BISYS System. The
Administrator shall provide the Trust with a schedule relating to such
conversion and the parties agree that the conversion may progress in stages.
The date upon which all Services shall have been converted to the BISYS System
shall be referred to herein as the "Conversion Date." The Administrator
hereby accepts such engagement and agrees to perform the Services commencing,
with respect to each individual Service, on the date that the conversion of
such Service to the BISYS System has been completed. The Administrator shall
determine in accordance with its normal acceptance procedures when the
applicable Service has been successfully converted. The parties hereby agree
that the Conversion Date shall be no later than January 1, 1997.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Trust in any way and shall
not be deemed an agent of the Trust.
ARTICLE 2. ADMINISTRATIVE SERVICES. The Administrator shall perform or
supervise the performance by others of other administrative services in
connection with the operations of the Portfolios, and, as requested by the
Trust, will investigate, assist in the selection of and conduct relations with
custodians, depositories, accountants, legal counsel, underwriters, brokers
and dealers, corporate fiduciaries, insurers, banks and persons in any other
capacity deemed by the Trust to be necessary or desirable for the Portfolios'
operations. The Administrator shall provide the Trustees of the Trust with
such reports regarding investment performance as they may reasonably request
but shall have no responsibility for supervising the performance by any
investment adviser or sub-adviser of its responsibilities.
The Administrator shall provide the Trust with regulatory reporting, all
necessary office space, equipment, personnel, compensation and facilities
(including facilities for meetings of shareholders ("Shareholders") and
Trustees of the Trust) for handling the affairs of the Portfolios and such
other services as the Administrator shall, from time to time, determine to be
necessary to perform its obligations under this Agreement. In addition, at
the request of the Board of Trustees, the Administrator shall make reports to
the Trust's Trustees concerning the performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator shall
provide the following services unless instructed otherwise by the Trust:
(a) calculate contractual Trust expenses and provide necessary
instructions for all disbursements for the Trust, and as appropriate
compute the Trust's yields, total return, expense ratios, portfolio
turnover rate and, if required, portfolio average dollar-weighted
maturity;
(b) assist Trust counsel with the preparation of prospectuses,
statements of additional information, registration statements and proxy
materials;
(c) prepare such reports, applications and documents (including reports
regarding the sale and redemption of Shares as may be required in order
to comply with Federal and state securities law) as may be necessary or
desirable to register the Trust's Shares with state securities
authorities, monitor the sale of Trust Shares for compliance with state
securities laws, and file with the appropriate state securities
authorities the registration statements and reports for the Trust and the
Trust's Shares and all amendments thereto, as may be necessary or
convenient to register and keep effective the Trust and the Trust's
Shares with state securities authorities to enable the Trust to make a
continuous offering of its Shares;
(d) develop and prepare, with the assistance of the Trust's officers or
designees, communications to Shareholders, including the annual report to
Shareholders, coordinate the mailing of prospectuses, notices, proxy
statements, proxies and other reports to Trust Shareholders, and
supervise and facilitate the proxy solicitation process for all
shareholder meetings, including the tabulation of shareholder votes;
(e) administer contracts on behalf of the Trust with, among others, the
Trust's investment advisers, distributor, custodian, transfer agent and
fund accountant;
(f) supervise the Trust's transfer agent with respect to the payment of
dividends and other distributions to Shareholders;
(g) calculate performance data of the Trust and its Portfolios for
dissemination to information services covering the investment company
industry;
(h) coordinate and supervise the preparation and filing of the Trust's
tax returns;
(i) examine and review the operations and performance of the various
organizations providing services to the Trust or any Portfolio of the
Trust, including, without limitation, the Trust's investment adviser,
distributor, custodian, fund accountant, transfer agent, outside legal
counsel and independent public accountants, and at the request of the
Board of Trustees, report to the Board on the performance of such
organizations;
(j) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout, printing and filing
with the SEC of the Trust's semi-annual and annual reports to
Shareholders;
(k) assist with the design, development, and operation of the Trust
Portfolios, including new classes, investment objectives, policies and
structure;
(l) provide individuals reasonably acceptable to the Trust's Board of
Trustees to serve as officers of the Trust, who will be responsible for
overseeing certain of the Trust's affairs as determined by the Trust's
Board of Trustees;
(m) advise the Trust and its Board of Trustees on matters concerning the
Trust and its affairs;
(n) obtain and keep in effect fidelity bonds and trustees and
officers/errors and omissions insurance policies for the Trust in
accordance with the requirements of Rules 17g-1 and 17d-1(7) under the
1940 Act as such bonds and policies are approved by the Trust's Board of
Trustees;
(o) monitor and advise the Trust and its Portfolios on their registered
investment company status under the Internal Revenue Code of 1986, as
amended;
(p) prepare Board meeting materials, including Board agendas and BISYS
presentations, coordinate board book production and distribution and
maintain board minute books;
(q) monitor compliance by reviewing monthly compliance reports prepared
by the Trust's investment advisers and performing independent portfolio
compliance testing;
(r) maintain Trust files for Trust contracts and for filings with the
SEC and other regulators;
(s) furnish advice and recommendations with respect to other aspects of
the business and affairs of the Portfolios as the Trust and the
Administrator shall determine desirable; and
(t) prepare and file with the SEC the semi-annual report for the Trust
on Form N-SAR and all required notices pursuant to Rule 24f-2.
The Administrator shall perform such other services for the Trust that
are mutually agreed upon by the parties from time to time. Such services
may include performing internal audit examinations; mailing the annual
reports of the Portfolios; preparing an annual list of Shareholders; and
mailing notices of Shareholders' meetings, proxies and proxy statements,
for all of which the Trust will pay the Administrator's out-of-pocket
expenses.
ARTICLE 3. ALLOCATION OF CHARGES AND EXPENSES.
(A) THE ADMINISTRATOR. The Administrator shall furnish at its own
expense the executive, supervisory and clerical personnel necessary to perform
its obligations under this Agreement. The Administrator shall also provide
the items which it is obligated to provide under this Agreement, and shall pay
all compensation, if any, of officers of the Trust as well as all Trustees of
the Trust who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Trust retained by the Trustees of the
Trust to perform services on behalf of the Trust.
(B) THE TRUST. The Trust assumes and shall pay or cause to be paid all
other expenses of the Trust not otherwise allocated herein, including, without
limitation, organization costs; taxes; expenses for legal and auditing
services; the expenses of preparing (including typesetting), printing and
mailing reports, prospectuses, statements of additional information, proxy
solicitation material and notices to existing Shareholders; all expenses
incurred in connection with issuing and redeeming Shares; the costs of
custodial services; the cost of initial and ongoing registration of the Shares
under Federal and state securities laws; fees and out-of-pocket expenses of
Trustees who are not interested persons of the Administrator, any investment
adviser to the Trust, the Trust or any affiliated corporation of the
Administrator or any investment adviser; insurance; interest; brokerage costs;
litigation and other extraordinary or nonrecurring expenses; and all fees and
charges of investment advisers to the Trust.
ARTICLE 4. COMPENSATION OF THE ADMINISTRATOR.
(A) ADMINISTRATION FEE. Commencing on the Conversion Date, for the
services rendered, the facilities furnished and the expenses assumed by the
Administrator pursuant to this Agreement, the Trust shall pay to the
Administrator compensation at an annual rate specified in Schedule A attached
hereto. Such compensation shall be calculated and accrued daily, and paid to
the Administrator monthly. The Trust shall also reimburse the Administrator
for its reasonable out-of-pocket expenses, including the travel and lodging
expenses incurred by officers and employees of the Administrator in connection
with attendance at Board meetings.
If the Conversion Date occurs subsequent to the first day of a month
or terminates before the last day of a month, the Administrator's compensation
for that part of the month in which this Agreement is in effect shall be
prorated in a manner consistent with the calculation of the fees as set forth
above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
(B) SURVIVAL OF COMPENSATION RIGHTS. All rights of compensation under
this Agreement for services performed as of the termination date shall survive
the termination of this Agreement.
ARTICLE 5. LIMITATION OF LIABILITY OF THE ADMINISTRATOR. The duties of
the Administrator shall be confined to those expressly set forth herein, and
no implied duties are assumed by or may be asserted against the Administrator
hereunder. The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any investment or for any act or
omission in carrying out its duties hereunder, except a loss resulting from
willful misfeasance, bad faith or negligence in the performance of its duties,
or by reason of reckless disregard of its obligations and duties hereunder,
except as may otherwise be provided under provisions of applicable law which
cannot be waived or modified hereby. (As used in this Article 5, the term
"Administrator" shall include directors and officers of, and persons who
control, the Administrator as well as the Administrator itself.)
So long as the Administrator acts in good faith and with due diligence
and without negligence, the Trust assumes full responsibility and shall
indemnify the Administrator and hold it harmless from and against any and all
actions, suits and claims, whether groundless or otherwise, and from and
against any and all losses, damages, costs, charges, reasonable counsel fees
and disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) arising directly or indirectly out of any service
rendered to the Trust hereunder. The Administrator agrees to indemnify and
hold harmless the Company, its Trustees and officers from and against any and
all actions suits and claims, whether groundless or otherwise, and from and
against any and all judgement, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and character
arising out of or in any way relating to the Administrator's bad faith willful
misfeasance, negligence or from reckless disregard by it of its obligations
and duties, with respect to the performance of services under this Agreement.
The indemnity and defense provisions set forth herein shall indefinitely
survive the termination of this Agreement.
Except for actions, suits or claims brought or threatened against the
Administrator by (i) the Trust, or (ii) one or more Shareholders of the Trust,
the rights hereunder shall include the right to reasonable advances of defense
expenses in the event of any pending or threatened litigation with respect to
which indemnification hereunder may ultimately be merited. In order that the
indemnification provisions contained herein shall apply, however, it is
understood that if in any case the indemnifying party may be asked to
indemnify or hold the other party harmless, the indemnifying party shall be
fully and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the indemnified party will use all
reasonable care to identify and notify the indemnifying party promptly
concerning any situation which presents or appears likely to present the
probability of such a claim for indemnification against the indemnifying
party, but failure to do so in good faith shall not affect the rights
hereunder.
The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by the indemnifying party and satisfactory to the
other party, whose approval shall not be unreasonably withheld. In the event
that the indemnifying party elects to assume the defense of any suit and
retain counsel, the indemnified party shall bear the fees and expenses of any
additional counsel retained by it. If the indemnifying party does not elect
to assume the defense of a suit, it will reimburse the other party for the
reasonable fees and expenses of any counsel retained by the other party.
The Administrator may apply to the Trust at any time for instructions and
may, at the Administrator's own expense, consult counsel for the Trust or its
own counsel and with accountants and other experts with respect to any matter
arising in connection with the Administrator's duties, and the Administrator
shall not be liable or accountable for any action taken or omitted by it in
good faith in accordance with such instruction or with the opinion of such
counsel, accountants or other experts.
Also, the Administrator shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or
presented by the proper person or persons. The Administrator will not be held
to have notice of any change of authority of any officers, employees or agents
of the Trust until receipt of written notice thereof from the Trust.
ARTICLE 6. ACTIVITIES OF THE ADMINISTRATOR. The services of the
Administrator rendered to the Trust are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that trustees, officers, employees
and Shareholders of the Trust are or may be or become interested in the
Administrator, as directors, officers, employees and shareholders or otherwise
and that partners, officers and employees of the Administrator and its counsel
are or may be or become similarly interested in the Trust, and that the
Administrator may be or become interested in the Trust as a Shareholder or
otherwise.
ARTICLE 7. DURATION OF THIS AGREEMENT. The Term of this Agreement shall
be as specified in Schedule A hereto.
ARTICLE 8. ASSIGNMENT. This Agreement shall not be assignable by either
party without the written consent of the other party; provided, however, that
the Administrator may, at its expense, subcontract with an affiliate of the
Administrator reasonably acceptable to the Trust concerning the provision of
the services contemplated hereunder and, provided further, that such
subcontractor shall be the agent of the Administrator and not the agent of the
Trust and that the Administrator shall be fully responsible for the acts of
such subcontractor and shall not be relieved of any of its responsibilities
hereunder 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 permitted assigns.
ARTICLE 9. AMENDMENTS. This Agreement may be amended if such amendment
is specifically approved in writing by the parties hereto.
ARTICLE 10. CERTAIN RECORDS. The Administrator shall maintain customary
records in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by the Administrator
on behalf of the Trust shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Trust and will be made
available to or surrendered promptly to the Trust on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Trust and follow the Trust's
instructions as to permitting or refusing such inspection; provided that, upon
notice to the Trust, the Administrator may exhibit such records to any person
in any case where it is advised by its counsel that it may be held liable for
failure to do so, unless (in cases involving potential exposure only to civil
liability) the Trust has agreed to indemnify the Administrator against such
liability.
ARTICLE 11. DEFINITIONS OF CERTAIN TERMS. The terms "interested person"
and "affiliated person," when used in this Agreement, shall have the
respective meanings specified in the 1940 Act and the rules and regulations
thereunder, subject to such exemptions as may be granted by the Securities and
Exchange Commission.
ARTICLE 12. NOTICE. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by Federal
Express or similar delivery service, by facsimile or by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the following address: if to the Administrator, to it at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇; if to the Trust, to it at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
or at such other address as such party may from time to time specify in
writing to the other party pursuant to this Section.
ARTICLE 13. GOVERNING LAW AND MATTERS RELATING TO THE TRUST. This
Agreement shall be governed by, and its provisions shall be construed in
accordance with, the laws of the State of Delaware. It is expressly agreed
that the obligations of the Trust hereunder shall not be binding upon any of
the Trustees, shareholders, nominees, officers, agents or employees of the
Trust personally, but shall bind only the trust property of the Trust. The
execution and delivery of this Agreement have been authorized by the Trustees,
and this Agreement has been signed and delivered by an authorized officer of
the Trust, acting as such, and neither such authorization by the 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 trust property of the Trust as provided in
the Trust's Agreement and Declaration of Trust.
ARTICLE 14. 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 but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST
By:/s/
Title:_____________________________________
BISYS FUND SERVICES LIMITED PARTNERSHIP
BY: BISYS FUND SERVICES, INC.
GENERAL PARTNER
By:/s/
Title:_____________________________________
SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF OCTOBER 1, 1996
BETWEEN THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST
AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
Portfolios: This Agreement shall apply to all Portfolios of the ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Trust , either now or hereafter created (collectively,
the "Portfolios"). The current portfolios of the Trust are set
forth below:
The Value Equity Portfolio
The Growth Equity Portfolio
The Small Capitazliation Equity Portfolio
The International Equity Portfolio
The Limited Duration Municipal Bond Portfolio
Fees: Pursuant to Article 4, in consideration of services rendered and
expenses assumed pursuant to this Agreement, the Trust will pay
the Administrator on the first business day of each month, or at
such time(s) as the Administrator shall request and the parties
hereto shall agree, a fee computed daily at the annual rate of:
Ten one-hundredths of one percent (.10%) of the Company's
average daily net assets up to $1 billion.
Six one-hundredths of one percent (.06%) of the Company's
average daily net assets in excess of $1 billion.
The fee for the period from the day of the month this Agreement
is entered into until the end of that month shall be prorated
according to the proportion which such period bears to the full
monthly period. Upon any termination of this Agreement before
the end of any month, the fee for such part of a month shall be
prorated according to the proportion which such period bears to
the full monthly period and shall be payable upon the date of
termination of this Agreement.
For purposes of determining the fees payable to the
Administrator, the value of the net assets of a particular
Portfolio shall be computed in the manner described in the
registration statement respecting that Portfolio as from time to
time is in effect for the computation of the value of such net
assets in connection with the determination of the net asset
value per share of such Portfolio.
DATED: OCTOBER 1, 1996
Term: The initial term of this Agreement (the "Initial Term") shall be
for a period commencing on the date this Agreement is executed
by both parties and ending on the date that is one year after
the Conversion Date. This Agreement shall be renewed
automatically for successive periods of one year after the
Initial Term, unless written notice of nonrenewal is provided by
either party not less than 60 days prior to the end of the then
current term. In the event of a material breach of this
Agreement by either party, the non breaching party shall notify
the breaching party in writing of such breach and upon receipt
of such notice, the breaching party shall have 45 days to remedy
the breach. In the event the breach is not remedied within such
time period, the nonbreaching party may immediately terminate
this Agreement.
Notwithstanding the foregoing, after such termination for so
long as the Administrator, with the written consent of the
Trust, in fact continues to perform any one or more of the
services contemplated by this Agreement or any schedule or
exhibit hereto, the provisions of this Agreement, including
without limitation the provisions dealing with indemnification,
shall continue in full force and effect. Compensation due the
Administrator and unpaid by the Trust upon such termination
shall be immediately due and payable upon and notwithstanding
such termination. The Administrator shall be entitled to
collect from the Trust, in addition to the compensation
described in this Schedule A, the amount of all of the
Administrator's cash disbursements for services in connection
with the Administrator's activities in effecting such
termination, including without limitation, the delivery to the
Trust and/or its designees of the Trust's property, records,
instruments and documents, or any copies thereof. Subsequent to
such termination, for a reasonable fee, the Administrator will
provide the Trust with reasonable access to any Trust documents
or records remaining in its possession.
DATED: OCTOBER 1, 1996
THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST
By:/s/
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc.
General Partner
By:/s/
Title:_____________________________________