Exhibit h(9)
SUB-ADMINISTRATION AND
FUND ACCOUNTING AGREEMENT
THIS SUB-ADMINISTRATION AND FUND ACCOUNTING AGREEMENT dated as of this 1st
day of July, 1998 (the "Agreement"), by and between FIRST DATA INVESTOR SERVICES
GROUP, INC., a Massachusetts corporation ("Investor Services Group"), having its
principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
ABN AMRO FUND SERVICES INC., a Delaware corporation (the "Company") having its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
WHEREAS, the Company provides administration and fund accounting services
to ABN Amro Funds (the "Fund"), an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Company desires to retain Investor Services Group to perform
certain sub-administrative and fund-accounting services with respect to each
investment portfolio listed in Schedule A hereto (collectively, the
"Portfolios"), as the same may be amended from time to time by the parties
hereto; and
WHEREAS, Investor Services Group is willing to perform such services on the
terms and conditions set forth herein.
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein, the Company and Investor Services Group agree as follows:
1. Effective Date and Appointment. This Agreement shall be effective on the
date first written above. The Company hereby appoints Investor Services Group as
Sub-Administrator of the Fund on the terms set forth in this Agreement. Investor
Services Group accepts such appointment and agrees to render the services
hereinafter set forth.
2. Delivery of Documents. The Company shall, on or before the date this
Agreement goes into effect, but in any case within a reasonable period of time
for Investor Services Group to prepare to perform its duties hereunder, deliver
or cause to be delivered to Investor Services Group the following documents
properly certified or authenticated:
(a) The Fund's Declaration of Trust (the "Declaration of Trust") filed
with the Commonwealth of Massachusetts and all amendments thereto;
(b) The Fund's By-Laws and all amendments thereto (the "By-Laws");
(c) The Investment Advisory Agreement between ABN Amro Asset
Management (USA) Inc. (the "Adviser") and the Fund dated as of December 31, 1992
and all amendments thereto (the "Advisory Agreement");
(d) The Custody Agreement between CoreStates Bank, N.A. (the
"Custodian") and the Fund dated as of December 31, 1992 and all amendments
thereto (the "Custody Agreement");
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(e) The Transfer Agency and Services Agreement between First Data
Investor Services Group, Inc. (the "Transfer Agent") and the Fund dated as of
February 26, 1998 and all amendments thereto;
(f) The Distribution Agreement between First Data Distributors, Inc.
(the "Distributor") and the Fund dated as of February 26, 1998 and all
amendments thereto (the "Distribution Agreement");
(g) The Fund's Registration Statement on Form N-1A (the "Registration
Statement") under the Securities Act of 1933 and under the 1940 Act (File Nos.
33-52784 and 811-7244), as declared effective by the Securities and Exchange
Commission ("SEC") on December 31, 1992, relating to shares of the Fund's
beneficial interests, no par value per share, and all amendments thereto; and
(h) Each Portfolio's most recent prospectus and Statement of
Additional Information and all amendments and supplements thereto (collectively,
the "Prospectuses").
The Company will furnish Investor Services Group from time to time with
copies, properly certified or authenticated, of all amendments of or supplements
to the foregoing. Furthermore, the Company will provide Investor Services Group
with any other documents that Investor Services Group may reasonably request and
will notify Investor Services Group as soon as possible of any matter materially
affecting the performance of Investor Services Group of its services under this
Agreement.
3. Duties as Sub-Administrator. Investor Services Group, as Sub-
Administrator, will assist in supervising various aspects of the Fund's
administrative operations and undertakes to perform the following specific
services:
(a) Administering and performing the customary services of a sub-
administrator, including those described in Schedule D hereto and incorporated
herein and in accordance with the terms of the Registration Statement of the
Fund on behalf of the Portfolios, applicable law, the procedures of the Fund,
and the procedures established from time to time between Investor Services Group
and the Company;
(b) Maintaining office facilities (which may be in the offices of
Investor Services Group or a corporate affiliate) and furnishing corporate
officers for the Fund;
(c) Performing the functions ordinarily performed by a mutual fund
group's internal legal department as described in Schedule D to this Agreement,
furnishing data processing services, clerical services, and executive and
administrative services and standard stationery and office supplies in
connection with the foregoing;
(d) Accounting and bookkeeping services (including the maintenance of
such accounts, books and records of the Fund as may be required by Section 31(a)
of the 1940 Act and the rules thereunder);
(e) Internal auditing;
(f) Performing all functions ordinarily performed by the office of a
corporate treasurer, and furnishing the services and facilities ordinarily
incident thereto, including calculating the net asset value of the shares in
conformity with the Portfolio(s) prospectus(es);
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(g) Preparing reports to the Fund's shareholders of record and the SEC
including, but not necessarily limited to, Annual Reports and Semi-Annual
Reports on Form N-SAR;
(h) Preparing and filing various reports or other documents required
by federal, state and other applicable laws and regulations, other than those
filed or required to be filed by the Adviser or Transfer Agent;
(i) Preparing and filing the Fund's tax returns;
(j) Assisting the Adviser, at the Adviser's request, in developing
compliance procedures for the Fund which will include, among other matters,
procedures monitoring compliance with each Portfolio's investment objective,
policies, restrictions, tax matters and applicable laws and regulations;
(k) Monitoring compliance with each Portfolio's investment objective,
policies, restrictions, tax matters and applicable laws and regulations in
accordance with the procedures established from time to time between Investor
Services Group, the Adviser, the Company and the Fund;
(l) Performing all functions ordinarily performed by the office of a
corporate secretary, and furnishing the services and facilities incident
thereto, including all functions pertaining to matters organic to the
organization, existence and maintenance of the corporate franchise of the Fund,
including preparation for, conduct of, and recording trustees' meetings and
shareholder meetings. Trustees' meetings in excess of five in any calendar year
and shareholder meetings in excess of one in any one year period shall be for an
additional reasonable charge as may be agreed upon by the Company and Investor
Services Group;
(m) Performing "Blue Sky" compliance functions, including maintaining
notice filings, qualifications or "Blue Chip" exemptions (if available) in all
U.S. jurisdictions requested by the Company, monitoring sales of shares in all
such jurisdictions and filing such additional notice or applying for such
additional or amended qualifications as may be reasonably anticipated to be
necessary to permit continuous sales of the shares of the Portfolios in all such
jurisdictions, filing sales literature and advertising materials to the extent
required, with such Blue Sky authorities, and making and filing all other
applications, reports, notices, documents and exhibits in connection with the
foregoing; and
(n) Furnishing all other services identified on Schedule D annexed
hereto and incorporated herein which are not otherwise specifically set forth
above.
(o) Investor Services Group agrees to provide the services set forth
herein in accordance with the Performance Standards annexed hereto as Exhibit 1
of Schedule D and incorporated herein (the "Performance Standards"). Such
Performance Standards may be amended from time to time by the parties.
In performing its duties under this Agreement, Investor Services Group: (a)
will act in accordance with the Declaration of Trust, By-Laws, Prospectuses and
with the instructions and directions of the Company and will conform to and
comply with the requirements of the 1940 Act and all other applicable federal or
state laws and regulations; and (b) will consult with legal counsel to the Fund,
as appropriate. Furthermore, Investor Services Group shall not have or be
required to have any authority to supervise the investment or reinvestment of
the securities or other properties which comprise the assets of the Fund or
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any of its Portfolios and shall not provide any investment advisory services to
the Fund or any of its Portfolios.
4. Compensation and Allocation of Expenses. Investor Services Group shall
bear all expenses in connection with the performance of its services under this
Agreement, except as indicated below.
(a) Investor Services Group will from time to time employ or associate
with itself such person or persons as Investor Services Group may believe to be
particularly suited to assist it in performing services under this Agreement.
Such person or persons may be officers and employees who are employed by both
Investor Services Group and the Fund. The compensation of such person or persons
shall be paid by Investor Services Group and no obligation shall be incurred on
behalf of the Company or the Fund in such respect.
(b) Investor Services Group shall not be required to pay any of the
following expenses incurred by the Company or the Fund: membership dues in the
Investment Company Institute or any similar organization; investment advisory
expenses; costs of printing and mailing prospectuses, reports and notices;
interest on borrowed money; brokerage commissions; taxes and fees payable to
Federal, state and other governmental agencies; fees of Trustees of the Fund who
are not affiliated with Investor Services Group; outside auditing expenses;
outside legal expenses; or other expenses not specified in this Section 4 which
are properly payable by the Company or the Fund.
(c) The Company will compensate Investor Services Group for the
performance of its obligations hereunder in accordance with the fees set forth
in the written Fee Schedule annexed hereto as Schedule B and incorporated
herein.
(d) The Company will compensate Investor Services Group for its
services rendered pursuant to this Agreement in accordance with the fees set
forth above. Such fees do not include reasonable out-of-pocket disbursements of
Investor Services Group or Special Legal Services, as described in Schedule C,
for which Investor Services Group shall be entitled to ▇▇▇▇ separately. Out-of-
pocket disbursements shall include the items specified in Schedule C, annexed
hereto and incorporated herein, and such other expenses as agreed upon in
writing by Investor Services Group and the Company.
(e) Investor Services Group will ▇▇▇▇ the Company as soon as
practicable after the end of each calendar month, and said ▇▇▇▇▇▇▇▇ will be
detailed in accordance with the out-of-pocket schedule. The Company will pay to
Investor Services Group the amount of such billing by Federal Funds Wire within
fifteen (15) business days after the Company's receipt of said ▇▇▇▇. In
addition, Investor Services Group may charge a service fee on any past due
billed amount equal to the lesser of (i) one and one half percent (1-1/2%) per
month or (ii) the highest interest rate legally permitted.
(f) Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule B, a revised Fee Schedule, executed and dated by
the parties hereto.
(g) In the event that Investor Services Group has failed to meet a
specific Performance Standard category with respect to any Portfolio, as set
forth in Exhibit 1 to Schedule D, in two of any rolling three month periods, the
Company may reduce the total amount of fees due to Investor Services Group under
this Agreement, excluding out-of-pocket expenses, by an amount equal to five
percent (5%) of the fees for the third month. Notwithstanding the foregoing, the
Company's right under this Section 4(g)
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shall not be effective until ninety (90) days after Investor Services Group has
begun providing services under this Agreement.
(h) In the event that Investor Services Group has failed to meet a
specific Performance Standard category with respect to the Portfolio, as set
forth in Exhibit 1 to Schedule D, in four of any rolling six month period, the
Company may terminate this Agreement in accordance with Section 8(d).
Notwithstanding the foregoing, the Company's right under this Section 4(h) shall
not be effective until ninety (90) days after Investor Services Group has begun
providing services under this Agreement.
5. Limitation of Liability.
(a) Investor Services Group shall at all times act in good faith and agrees
to use its best efforts within commercially reasonable limits to ensure the
accuracy of all services performed under this Agreement. Investor Services Group
shall not be liable for any error of judgment or mistake of law or for any loss
suffered by the Company or the Fund in connection with the performance of its
obligations and duties under this Agreement, except a loss resulting from
Investor Services Group's willful misfeasance, bad faith or negligence in the
performance of such obligations and duties, or by reason of its reckless
disregard thereof, reliance on information furnished to the Company or the Fund
by Investor Services Group or its affiliates, or Investor Services Group's
refusal or failure to comply with the terms or conditions of this Agreement. The
Company shall not be liable to Investor Services Group or any of its affiliates
for any error of judgment or mistake of law or for any loss suffered by Investor
Services Group or its affiliates in connection with this Agreement, except for a
loss resulting from the Company's willful misfeasance, bad faith or negligence,
or by reason of its reckless disregard of its duties and obligations hereunder.
(b) Each party shall have the duty to mitigate damages for which the other
party may become responsible.
(c) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR LOST PROFITS, EXEMPLARY,
PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
6. Indemnification.
(a) The Company shall indemnify and hold Investor Services Group
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges, payments and liabilities
of any sort or kind which may be asserted against Investor Services Group or for
which Investor Services Group may be held to be liable in connection with any
action required to be taken pursuant to this Agreement (a "Claim"), unless such
Claim resulted from a willful misfeasance, bad faith or negligence by Investor
Services Group in the performance of its duties hereunder or reckless disregard
of its duties or obligations hereunder, reliance on information furnished to the
Company by Investor Services Group or its affiliates, or Investor Services
Group's refusal or failure to comply with the terms or conditions of this
Agreement.
(b) Investor Services Group shall indemnify and hold the Company
harmless from and against any and all claims, costs, expenses (including
attorney's fees), losses, damages, charges, payments and liabilities of any sort
or kind which may be asserted against the Company, or for which the Company
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may be held liable in connection with this Agreement, or Investor Services
Group's performance hereunder (a "Claim"), unless such Claim resulted from
willful misfeasance, bad faith or negligence by the Company in the performance
of it duties or obligations hereunder, or reckless disregard of its duties and
obligations hereunder.
(c) In any case in which one party (the "Indemnifying Party") may be
asked to indemnify or hold the other party (the "Indemnified Party") harmless,
the Indemnified Party will notify the Indemnifying Party promptly after
identifying any situation which it believes presents or appears likely to
present a claim for indemnification against the Indemnifying Party although the
failure to do so in good faith shall not prevent recovery by the Indemnified
Party and shall keep the Indemnifying Party advised with respect to all
developments concerning such situation. The Indemnifying Party shall have the
option to defend the Indemnified Party against any Claim which may be the
subject of this indemnification, and, in the event that the Indemnifying Party
so elects, such defense shall be conducted by counsel chosen by the Indemnifying
Party and satisfactory to the Indemnified Party whose approval shall not be
unreasonably withheld, and thereupon the Indemnifying Party shall take over
complete defense of the Claim and the Indemnified Party shall sustain no further
legal or other expenses in respect of such Claim. If the Indemnifying Party
elects to assume the defense of any suit and retains counsel, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it.
The Indemnified Party will not confess any Claim or make any compromise in any
case in which the Indemnifying Party will be asked to provide indemnification,
except with the Indemnifying Party's prior written consent. The obligations of
the parties hereto under this Section 6 shall survive the termination of this
Agreement.
(d) Except for remedies which cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 6 shall be the
Indemnified Party's sole and exclusive remedy for claims or other actions or
proceedings to which the Indemnifying Party's indemnification obligations
pursuant to this Article 6 apply.
(e) In the event that the Indemnifying Party does not elect to assume
the defense of any such suit or in the case the Indemnified Party reasonably
does not approve of counsel chosen by the Indemnifying Party, or in the case
there is a conflict of interest between the Company and Investor Services Group,
the Indemnifying Party will reimburse the Indemnified Party, its officers,
trustees, directors and employees, or the controlling person or persons named as
defendant or defendants in such suit, for the reasonable fees and expenses of
any counsel retained by the Indemnified Party or such defendant(s). The
Indemnifying Party's indemnification agreement contained in this Section 6 and
the Indemnifying Party's representations and warranties contained in this
Agreement shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Party, its officers,
directors, trustees or employees, or any controlling person(s). This agreement
of indemnity will inure exclusively to the Indemnified Party's benefit, to the
benefit of its several officers, directors, trustees and employees, and their
respective estates and to the benefit of the controlling person(s) and their
successors. The Indemnifying Party agrees promptly to notify the Indemnified
Party of the commencement of any litigation or proceedings against the
Indemnifying Party or any of its officers, directors, trustees or employees in
connection with the services rendered hereunder.
7. EXCLUSION OF WARRANTIES. THIS IS A SERVICE AGREEMENT. EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, INVESTOR SERVICES GROUP DISCLAIMS ALL
OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE COMPANY,
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,
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CUSTOM OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO
SERVICES PROVIDED UNDER THIS AGREEMENT. INVESTOR SERVICES GROUP DISCLAIMS ANY
WARRANTY OF TITLE OR NON-INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT.
8. Term and Termination of Agreement.
(a) This Agreement shall be effective on the date first written above
and shall continue for a period of three (3) years (the "Initial Term"), unless
earlier terminated pursuant to the terms of this Agreement. Thereafter, this
Agreement shall automatically be renewed for successive terms of three (3) years
("Renewal Terms") each.
(b) Either party may terminate this Agreement at the end of the
Initial Term or at the end of any subsequent Renewal Term upon not than less
than ninety (90) days prior written notice to the other party. This Agreement
may be terminated by mutual written agreement of the parties.
(c) In the event a termination notice is given by the Company, all
reasonable expenses associated with movement of records and materials and
conversion thereof will be borne by the Company, provided, however, that
Investor Services Group shall use its best efforts to mitigate the costs
associated with such conversion.
(d) If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") resulting in a material
loss to the other party, such 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 or such material breach is incapable of being remedied, as reasonably
determined by the Non-Defaulting Party, then the Non-Defaulting Party may
terminate this Agreement by giving thirty (30) days written notice of such
termination to the Defaulting Party. If Investor Services Group is the Non-
Defaulting Party, its termination of this Agreement shall not constitute a
waiver of any other rights or remedies of Investor Services Group with respect
to services performed prior to such termination or rights of Investor Services
Group 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.
(e) Notwithstanding anything contained in this Agreement to the
contrary, in the event that this Agreement is terminated by the Company and such
termination arises, either directly or indirectly as a result of the dissolution
of the Company or the Fund or the acquisition of or consolidation or merger into
or with another company or fund (the "New Company" or "New Fund" respectively)
for which Investor Services Group does not provide services substantially
similar to those provided to the Company hereunder, prior to the effective date
of such termination and the conversion of the Fund's records to the New Fund, or
its agent, the Company shall pay to Investor Services Group the fee set forth in
Schedule B (the "Early Termination Fee").
(f) This Agreement may be terminated by the Company without penalty in
the event of its assignment, as such term is defined in the 1940 Act, by
Investor Services Group, provided that 45 days prior written notice of
termination must be given to Investor Services Group within 120 days following
the assignment.
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9. Modifications and Waivers; Authority to Act. No change, termination,
modification, or waiver of any term or condition of the Agreement shall be valid
unless in writing signed by each party. No such writing shall be effective as
against Investor Services Group unless said writing is executed by a Senior Vice
President, Executive Vice President or President of Investor Services Group. A
party's waiver of a breach of any term or condition in the Agreement shall not
be deemed a waiver of any subsequent breach of the same or another term or
condition. Any officer, director, partner, employee or agent of the Fund who is
also an officer, director, partner, employee or agent of Investor Services Group
shall be deemed to be rendering services to or acting solely for the Fund,
except when rendering services or conducting business in connection with
Investor Services Group's duties hereunder.
10. No Presumption Against Drafter. Investor Services Group and the
Company have jointly participated in the negotiation and drafting of this
Agreement. The Agreement shall be construed as if drafted jointly by the Company
and Investor Services Group, and no presumptions arise favoring any party by
virtue of the authorship of any provision of this Agreement.
11. Publicity. Neither Investor Services Group nor the Company shall
release or publish news releases, public announcements, advertising or other
publicity relating to this Agreement or to the transactions contemplated by it,
other than factual statements concerning the existence of the relationship,
without prior review and written approval of the other party; provided, however,
that either party may make such disclosures as are required by legal, accounting
or regulatory requirements after making reasonable efforts in the circumstances
to consult in advance with the other party.
12. Severability. The parties intend every provision of this Agreement
to be severable. If a court of competent jurisdiction determines that any term
or provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
13. Notice. Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Company or Investor Services Group shall
be sufficiently given if addressed to the party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Company:
ABN Amro Fund Services Inc.
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire
To Investor Services Group:
First Data Investor Services Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
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with a copy to Investor Services Group's General Counsel
14. Assignment and Subcontracting. This Agreement, its benefits and
obligations shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns and is not intended to
confer upon any other person any rights or remedies hereunder. This Agreement
may not be assigned or otherwise transferred by either party hereto, without the
prior written consent of the other party, which consent shall not be
unreasonably withheld; provided, however, that Investor Services Group may, in
its sole discretion, assign all its right, title and interest in this Agreement
to an affiliate, parent or subsidiary, or to the purchaser of substantially all
of its business. Investor Services Group may, in its sole discretion, engage
subcontractors to perform any of the obligations contained in this Agreement to
be performed by Investor Services Group; provided, however that Investor
Services Group may not engage subcontractors to perform a substantial part of
the services to be performed by Investor Services Group without the prior
written consent of the Company, which consent may not be unreasonably withheld.
15. Governing Law/Venue. The laws of the Commonwealth of Massachusetts,
excluding the laws on conflicts of laws, shall govern the interpretation,
validity, and enforcement of this Agreement. All actions arising from or
related to this Agreement shall be brought in the state and federal courts
sitting in the City of Boston, and Investor Services Group and the Company
hereby submit themselves to the exclusive jurisdiction of those courts. To the
extent that the provisions of Massachusetts law or the provisions hereof
conflict with the 1940 Act, the 1940 Act shall control.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and which
collectively shall be deemed to constitute only one instrument.
17. Captions. The captions of this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect.
18. Arbitration.
(a) Any claim or controversy arising out of or related to this
Agreement, or breach hereof, shall be settled by arbitration administered by the
American Arbitration Association in Boston, Massachusetts in accordance with its
applicable rules, except that the Federal Rules of Evidence and the Federal
Rules of Civil Procedure with respect to the discovery process shall apply. The
parties hereby agree that judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction.
(b) The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law provisions
in this Agreement, the parties agree that the Federal Arbitration Act shall
govern and control with respect to the provisions of this Article.
19. Additional Portfolios. In the event that the Fund establishes one or
more Portfolios in addition to those identified in Schedule A, with respect to
which the Company desires to have Investor Services Group render services as
sub-administrator under the terms hereof, the Company shall so notify Investor
Services Group in writing, and if Investor Services Group agrees in writing to
provide such services, Schedule A shall be amended to include such additional
Portfolios.
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20. Confidentiality: Ownership.
(a) Confidentiality. In the course of performance under this
Agreement, each party may have access to and receive disclosure of confidential
information about the other party, including but not limited to that party's
financial information, financial strategies, marketing plans, customer profiles,
sales estimates, business plans and a variety of other information which the
receiving party should reasonably consider to be confidential and proprietary
(hereinafter referred to as "Confidential Information"). The contents of this
Agreement are also Confidential Information. Each party shall exercise
reasonable care to safeguard the confidentiality of the Confidential Information
of the other. Confidential Information of the disclosing party shall be used by
the receiving party solely in the performance of the receiving party's
obligations pursuant to this Agreement. The receiving party shall receive
Confidential Information in confidence and not disclose Confidential Information
of the disclosing party to any third party, except as may be necessary for the
receiving party to perform its obligations pursuant to this Agreement, as
required by law or a court of competent jurisdiction or by a regulatory agency
with supervisory responsibilities over the disclosing party, for confidential
consultations with accountants or attorneys, or as may otherwise be agreed upon
in writing by the disclosing party. Each party may, however, disclose
Confidential Information to its parent corporation, affiliates, subsidiaries and
affiliated companies and employees, provided that each shall use reasonable
efforts to ensure that the Confidential Information is not duplicated or
disclosed in breach of this Agreement.
Each party acknowledges that breach of the restrictions on use,
dissemination or disclosure of any Confidential Information of the other party
would result in immediate and irreparable harm, and money damages would be
inadequate to compensate the other party for that harm. Each party shall be
entitled to equitable relief, in addition to all other available remedies, to
redress any such breach.
(b) Ownership. In the course of performance under this Agreement,
Investor Services Group may create reports, marketing materials, promotional
materials, and other materials relating to the Company ("Results"). The Company
acknowledges and agrees that Investor Services Group is the sole owner of all
rights (including, but not limited to, copyrights) to any Results, or aspects of
Results, that are used by Investor Services Group for administering its clients
generally and are not created solely for the Company. Notwithstanding the
foregoing, all rights (including, but not limited to, copyrights) to any Results
that are created solely for the Company (including, but not limited to, any
marketing materials and promotional materials created solely in connection with
the Company) are solely owned by the Company and are assigned to the Company by
Investor Services Group and the Company shall have a perpetual, royalty free,
worldwide, transferable license to use, copy, transmit, distribute and modify
any Results owned by Investor Services Group as may reasonably be necessary for
the Company to exploit fully all of its rights in any Results owned by the
Company.
21. Records. Notwithstanding any other provisions in this Agreement,
Investor Services Group, directly or through third parties, shall maintain and
preserve for the periods prescribed therein, records relating to the services to
be performed under this Agreement which are required under the 1940 Act, and the
rules and regulations thereunder. Any records required to be maintained and
preserved under the 1940 Act which are prepared or maintained by Investor
Services Group on behalf of the Fund shall be prepared and maintained at the
expense of Investor Services Group, but shall be the property of the Fund, shall
be readily accessible during normal business hours to the Company and its duly
authorized agents, and shall be surrendered promptly to the Company on written
request or upon termination of this Agreement. Records shall be surrendered in
usable machine readable form. In the case of any request or demand for the
inspection of such records by another party, Investor Services Group shall
notify the Company and follow the Company's instructions as to permitting or
refusing such inspection; provided that
-10-
Investor Services Group 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
Company has agreed to indemnify Investor Services Group against such liability
and any expenses incurred.
22. Force Majeure. No party shall be liable for any default or delay in
the performance of its obligations under this Agreement if and to the extent
such default or delay is caused, directly or indirectly, by (i) fire, flood,
elements of nature or other acts of God; (ii) any outbreak or escalation of
hostilities, war, riots or civil disorders in any country, (iii) any act or
omission of the other party or any governmental authority; (iv) any labor
disputes (whether or not the employees' demands are reasonable or within the
party's power to satisfy); or (v) nonperformance by a third party or any similar
cause beyond the reasonable control of such party, including without limitation,
failures or fluctuations in telecommunications or other equipment. In any such
event, the non-performing party shall be excused from any further performance
and observance of the obligations so affected only for so long as such
circumstances prevail and such party continues to use commercially reasonable
efforts to recommence performance or observance as soon as practicable.
23. Equipment Failures. Notwithstanding any other provision in this
Agreement, in the event of equipment failures or the occurrence of events beyond
Investor Services Group's control which render its performance under this
Agreement impossible, Investor Services Group shall at no additional expense to
the Company take reasonable steps to minimize service interruptions. Investor
Services Group represents that the various procedures and systems which Investor
Services Group has implemented with regard to safekeeping from loss or damage
attributable to fire, theft or any other cause of the records, and other data of
the Company and Investor Services Group's records, data, equipment, facilities
and other property used in performance of its obligations hereunder are
reasonably adequate and are covered by a reasonably adequate disaster recovery
plan, and it will make such changes therein from time to time as are reasonably
required for the secure performance of its obligations hereunder.
24. Year 2000. Investor Service Group's services hereunder shall be
rendered, and its computer systems used in rendering such services shall operate
and function, without any Year 2000 Error. The term "Year 2000 Error" means:
(a) any failure of Investor Services Group's systems to properly
record, store, process, calculate or present calendar dates falling on and after
(and, if applicable, spans of time including) January 1, 2000 as a result of the
occurrence or use of data consisting of such dates;
(b) any failure of Investor Services Group's systems to calculate any
information dependent on or relating to dates on or after January 1, 2000 in the
same manner, and with the same functionality, date integrity and performance, as
such systems record, store, process, calculate and present calendar dates on or
before December 31, 1999, or information dependent on or relating to such dates;
or
(c) any loss of functionality or performance with respect to the
introduction of records or processing of data containing dates falling on or
after January 1, 2000.
25. Entire Agreement. This Agreement, including all Schedules hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof.
-11-
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed and delivered by their duly authorized officers as of the date
first written above.
FIRST DATA INVESTOR SERVICES GROUP, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:______________________________________
Name:____________________________________
Title:___________________________________
ABN AMRO FUND SERVICES INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:______________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:____________________________________
Corporate Secretary
Title:___________________________________
-12-
SCHEDULE A
Money Market Funds
Treasury Money Market Fund
Government Money Market Fund
Money Market Fund
Tax-Exempt Money Market Fund
Fixed Income Funds
Fixed Income Fund
Intermediate Government Fixed Income Fund
Tax-Exempt Fixed Income Fund
International Fixed Income Fund
Limited Volatility Fixed Income Fund
Balanced Funds
Balanced Fund
Equity Funds
Value Fund
Growth Fund
International Equity Fund
Small Cap Growth Fund
Asian Tigers Fund
TransEurope Fund
Latin America Equity Fund
Real Estate Fund
Small Cap Value Fund
-13-
SCHEDULE B
----------
FEE SCHEDULE
For the services to be rendered, the facilities to be furnished and the
payments to be made by Investor Services Group, as provided for in this
Agreement, the Company, on behalf of each Portfolio, will pay Investor Services
Group a fee for the previous month at the rates listed below. The fee for the
period from the effective date of this Agreement to the end of such month shall
be prorated according to the proportion that 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.
. Fund Administration Fee:
0.06% of average net assets for assets up to $2 billion
0.04% of average net assets for assets over $2 billion
. Fund Accounting Fee:
Regular Rate:
------------
Per Portfolio $35,000
Each additional class $2,500
For any new Portfolios commencing operations on of after April 30, 1998,
the following fee schedule shall apply:
Fund Assets Fund Accounting Fee
----------- -------------------
up to $10 million waived
$10 million to $20 million $17,500 (1/2 regular rate)
over $20 million regular rate
. Early Termination Fee:
The Early Termination Fee referred to in Section 8(e) and Section
13.5 of the Transfer Agency Agreement (together with this
Agreement, the "Agreements") shall equal in the aggregate
$1,500,000 if such termination occurs during the first year of
the Agreements and $750,000 if such termination occurs during the
second year of the Agreements.
. Investor Services Group shall be entitled to collect all out-of-pocket
fees described in Schedule C.
-14-
SCHEDULE C
----------
OUT-OF-POCKET EXPENSES
Out-of-pocket expenses include, but are not limited to, the following:
- Postage of Board meeting materials and other materials to the Fund's
Board members and service providers (including overnight or other
courier services)
- Telecommunications charges (including FAX) with respect to
communications with the Fund's directors, officers and service
providers
- Travel to and from Board Meetings and other meetings with Portfolio
management
- Duplicating charges with respect to filings with federal and state
authorities and Board meeting materials
- Courier services
- Pricing services
- Forms and supplies for the preparation oF Board meetings and other
materials on behalf of the Fund
- Vendor set-up charges for Blue Sky services
- Customized programming requests
- Such other expenses as are agreed to by Investor Services Group and the
Company
-15-
SCHEDULE D
----------
Fund Accounting and Administrative Services
Routine Projects
. Daily, Weekly, and Monthly Reporting
. Portfolio and General Ledger Accounting
. Daily Pricing of all Securities
. Daily Valuation and NAV Calculation. Monitoring compliance with all
applicable procedures. Support and report delivery to the valuation
committee
. Comparison of NAV to market movement
. Review of price tolerance/fluctuation report
. Research items appearing on the price exception report
. Weekly cost monitoring along with market-to-market valuations in accordance
with Rule 2a7
. Preparation of monthly ex-dividend monitor
. Daily cash reconciliation with the custodian bank
. Daily updating of price and rate information to the Transfer Agent/
Insurance Agent
. Daily support and report delivery to Portfolio Management
. Daily calculation of fund advisor fees and waivers
. Daily calculation of distribution rates
. Daily maintenance of each fund's general ledger including expense accruals
. Daily price notification to other vendors as required
. Calculation of 30-day adjusted SEC yields
. Preparation of month-end reconciliation package
. Monthly reconciliation of fund expense records
. Preparation of monthly pay down gain/loss summaries
. Preparation of all annual and semi-annual audit work papers
. Preparation and Printing of Financial Statements
. Providing Shareholder Tax Information to Transfer Agent
. Producing Drafts of IRS and State Tax Returns
. Treasury Services including:
Provide Officer for the fund
Expense Accrual Monitoring
Determination of Dividends
Prepare materials for review by the board, e.g., 2a-7,10f-3, 17a-7,
17e-1, Rule 144a
Tax and Financial Counsel
. Monthly Compliance Testing including Section 817H
. Other services ordinarily performed and provided by a fund administrator
and fund accounting department
-16-
Legal, Regulatory and Board of Trustees Support
Routine Legal Services
Corporate Secretarial
---------------------
. Assist in maintaining corporate records and good standing status of Fund in
its state of organization
. Provide Secretary/Assistant Secretary for Fund
. Develop and maintain calendar of annual and quarterly board approvals and
regulatory filings
. Prepare notice, agenda, memoranda, resolutions and background materials for
legal approval at quarterly board meetings; attend meetings; make
presentations where appropriate; prepare minutes; follow up on issues
. Provide support for one special board meeting per year and written consent
votes where needed
Regulatory/Filings
------------------
. Prepare and file annual Post-Effective Amendment
. Prepare and file Rule 24e-2 and Rule 24f-2 Notices
. Review and file Form N-SAR
. Review and file Annual and Semi-Annual Financial Reports
. Prepare prospectus supplements as needed
Miscellaneous Routine Legal Services
------------------------------------
. Communicate significant regulatory or legislative developments to Fund
management and directors and provide related planning assistance where needed
. Consult with Fund management regarding portfolio compliance and Fund
corporate and regulatory issues as needed
. Maintain effective communication with outside counsel and review legal bills
of outside counsel
. Coordinate the printing and mailing process with outside printers for all
shareholder publications
. Review sales material and advertising for Fund SEC AND NASD COMPLIANCE
. Arrange D&O/E&O insurance and fidelity bond coverage for Fund
. Assist in managing SEC audits of Funds
. Assist in monitoring Fund Code of Ethics reporting and provide such reports
to Adviser
. Assist in developing compliance guidelines and procedures to improve
overall compliance by Fund and service providers
Special Legal Services (billed separately)
. Assist in conversion
Coordinate time and responsibility schedules
Draft notice, agenda, memoranda, resolutions and background materials for
board approval
. Assist in new fund start-up (to the extent requested)
Coordinate time and responsibility schedules
Prepare Fund corporate documents (MTA/by-laws)
Draft/file registration statement (including investment objectives/policies
and prospectuses)
Respond to and negotiate SEC comments
Draft notice, agenda and resolutions for organizational meeting; attend
board meeting; make presentations where appropriate; prepare minutes and
follow up on issues
. Prepare notice, agenda, memoranda and background materials for special
board meetings, make presentations where appropriate, prepare minutes and
follow up on issues*
-17-
. Prepare proxy material for special meetings (including fund merger
documents)*
. Prepare PEA for special purposes (e.g., new funds or classes, changes in
advisory relationships, mergers, restructurings)*
. Assist in extraordinary non-recurring projects
Arrange CDSC financial programs
Prospectus simplification
Profile prospectuses
Exemptive order applications
. Provide consultative legal services as needed
* Services and charges may vary based on volume. Special Legal Services shall
be billed at a rate of $185 per hour subject to certain project caps as may be
agreed to by Investor Services Group and the Company. No Special Legal Services
shall be undertaken by Investor Services Group without the prior written consent
of the Company.
-18-
EXHIBIT 1 TO SCHEDULE D
FIRST DATA SERVICE
PERFORMANCE STANDARDS
Investor Services Group's obligation to meet the following Performance Standards
shall be measured in the aggregate with respect to all Portfolios of the Fund.
Investor Services Group will report to the Company on a monthly basis the
percent of items completed within standard as well as a quality rating.
Reporting will be detailed to the transaction type level. A pass/fail
determination for contractual penalties will however be based on the categories
listed below. For example, the accuracy of NAV calculations will be reported to
the Company on an individual basis and as a collective group. Investor Services
Group will receive a "fail" for the month if the collective score for all
financials falls below the contractual level. Note that completion standards
are measured in business days.
Fund Accounting/Custody Liaison
-------------------------------
. NAVs calculated accurately, provided that all information received from
external vendors or Fund managers is correct
. Information to nasdaq is reported accurately and within appropriate time
frames
. Daily bulletin is released by 6:30 p.m. Eastern Time, provided that all
information received from external vendors or Fund managers is received on
a timely basis
. Accurate Cash Availability will be provided by 9:30 a.m. Eastern Time
. Budget analysis
The above standards will be adhered to at least 98% of the time measured on a
monthly basis.
Fund Administration (Treasury and Reporting)/Tax/Compliance
-----------------------------------------------------------
. All SEC and IRS regulatory requirements will be met according to the
deadlines set forth by the SEC and the IRS
. Notification to Adviser and Sub-Adviser within two (2) business days with
compliance violations based on procedures established by and among Investor
Services Group and the Company
The above standard will be met 100% of the time.
Legal Administration
--------------------
. Board materials will be sent to the Company for review fourteen (14)
business days prior to the Board meeting
. Review of sales literature - response within seven (7) business days
The above standard will be met 98% of the time as measured on a quarterly basis.
-19-
. Timely submission of sales literature to NASD
The above standard will be met 98% of the time as measured on a quarterly basis.
-20-