ADMINISTRATION AGREEMENT
between
KALMAR POOLED INVESTMENT TRUST
and
XXXXXX SQUARE MANAGEMENT CORPORATION
THIS ADMINISTRATION AGREEMENT is made as of the 31st day of
January, 1997, between Kalmar Pooled Investment Trust, a Delaware
business trust (the "Trust"), having its principal place of
business in Greenville, Delaware, and Xxxxxx Square Management
Corporation, a Delaware corporation ("Xxxxxx Square"), having its
principal place of business in Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company and offers for public sale one or
more series of shares of beneficial interest ("Series") each of
which may offer one or more sub-series (or classes) of shares;
WHEREAS, each share of a Series represents an undivided
interest in the assets, subject to the liabilities, allocated to
that Series and each Series has a separate investment objective
and investment policies;
WHEREAS, at the present time, the Trust has established two
Series, each with a single class of shares and the Trust may
establish additional Series and/or classes in the future; and
WHEREAS, the Trust desires to avail itself of the services
of Xxxxxx Square and to have Xxxxxx Square provide certain
administrative services; and Xxxxxx Square is willing to furnish
such services to the Trust with respect to each Series listed on
Schedule A to this Agreement (each a "Fund" and collectively the
"Funds") on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties agree as follows:
1. APPOINTMENT. The Trust hereby appoints and employs
Xxxxxx Square as agent to perform those services described in
this Agreement for the Trust, with such appointment to take
effect at the close of business on the date first written above.
Xxxxxx Square shall act under such appointment and perform the
obligations thereof upon the terms and conditions hereinafter set
forth and in accordance with the principles of principal and
agent enunciated by the common law.
2. DOCUMENTS. The Trust has furnished Xxxxxx Square with
copies of the Trust's Agreement and Declaration of Trust, By-
Laws, Advisory Agreement, Distribution Agreement, Accounting
Services Agreement, Custody Agreement, Transfer Agency Agreement,
Shareholder Servicing Plan and Agreement, most recent
Registration Statement on Form N-1A, current Prospectuses and
Statement of Additional Information (the "SAI") and all forms
relating to the plan, program or service offered by the Trust.
The Trust shall furnish promptly to Xxxxxx Square a copy of any
amendment or supplement to the above-mentioned documents. The
Trust shall furnish promptly to Xxxxxx Square any additional
documents necessary for it to perform its functions hereunder or
such other documents as Xxxxxx Square shall request.
3. ADMINISTRATIVE SERVICES. Subject to the direction and
control of the Board of Trustees of the Trust (the "Trustees")
and to the extent not otherwise the responsibility of, or
provided by, the Trust or other supply agents of the Trust,
Xxxxxx Square shall provide the following administrative
services:
a. Supply:
(i) office facilities (which may be in Xxxxxx
Square's or its affiliates' own offices);
(ii) non-investment related statistical and
research data;
(iii) executive and administrative services;
(iv) stationery and office supplies at Trust
expense; and
(v) corporate secretarial services, such as the
preparation and distribution of materials at
Trust expense for meetings of the Trustees or
shareholders;
b. Prepare and file, if necessary, reports to
shareholders of the Trust and reports with the
Securities and Exchange Commission (the "SEC"), state
securities authorities including preliminary and
definitive proxy materials, post-effective amendments
to the Trust's registration statement, Rule 24f-2
Notices, Form N-SAR filings and Prospectus supplements;
c. Monitor each Fund's compliance with the investment
restrictions and limitations imposed by the 1940 Act,
and state securities laws and applicable regulations
thereunder, the fundamental and non-fundamental
investment policies and limitations set forth in the
Prospectuses and SAI, and the investment restrictions
and limitations necessary for each Fund to qualify as a
regulated investment company under Subchapter M of the
Internal Revenue Code of 1986, as amended (the "Code")
or any successor statute;
d. Monitor sales of each Fund's shares and ensure
that such shares are properly registered, qualified or
authorized for sale as required by the SEC and/or
applicable state authorities;
e. Prepare and distribute to appropriate parties
notices announcing the declaration of dividends and
other distributions to shareholders;
f. Prepare financial statements and footnotes and
other financial information with such frequency and in
such format as required to be included in reports to
shareholders and the SEC;
g. Review sales literature and file such with
regulatory authorities, as necessary;
h. Provide information regarding material
developments in state securities regulation; and
i. Provide personnel to serve as officers of the
Trust if so elected by the Trustees.
4. EXPENSES OF THE TRUST. The Trust agrees that it will
pay all its expenses other than those expressly stated to be
payable by Xxxxxx Square hereunder, which expenses payable by the
Trust shall include, without limitation:
a. Fees payable for investment advisory services
provided by the Trust's investment adviser;
b. Fees payable for services provided by the Trust's
independent public accountants;
c. Fees payable for accounting services;
d. Fees payable for transfer agency services;
e. Fees payable for custodial services;
f. The cost of obtaining quotations for calculating
the value of the assets of each Fund;
g. Taxes levied against the Trust or any Fund;
h. Brokerage fees, xxxx-ups and commissions in
connection with the purchase and sale of portfolio
securities;
i. Costs, including the interest expense, of
borrowing money;
j. Costs and/or fees incident to holding meetings of
the Trustees and/or shareholders, preparation
(including typesetting, printing and XXXXX filing
charges) and mailing of prospectuses, reports and
proxy materials to the existing shareholders of the
Trust, filing of reports with regulatory bodies,
maintenance of the Trust's corporate existence, and
registration, qualification or notification of shares
with federal and state securities authorities;
k. Legal fees and expenses;
l. Costs of printing share certificates representing
shares of the Trust;
m. Fees payable to, and expenses of, members of the
Trustees who are not "interested persons" of the Trust;
n. Out-of-pocket expenses incurred in connection with
the provision of administration, accounting, custodial
and transfer agency services;
o. Premiums payable on the fidelity bond required by
Section 17(g) of the 1940 Act, and any other premiums
payable on insurance policies related to the Trust's
business and the investment activities of its Funds;
p. Rule 12b-1 fees, if any;
q. Shareholder service fees, if any;
r. Fees, voluntary assessments and other expenses
incurred in connection with the Trust's membership in
investment company organizations; and
s. Such non-recurring expenses as may arise,
including actions, suits or proceedings to which the
Trust is a party and the legal obligation which the
Trust may have to indemnify its Trustees and officers
with respect thereto.
Except as otherwise agreed by Xxxxxx Square, Xxxxxx Square
will not reimburse the Trust for (or have deducted from its fees
payable under this Agreement) any expenses in excess of any
expense limitations imposed by state securities commissions
having jurisdiction over the sale of Fund shares.
5. RECORDKEEPING AND OTHER INFORMATION. Xxxxxx Square
shall create and maintain all necessary records in accordance
with all applicable laws, rules and regulations, including, but
not limited to, records required by Section 31(a) of the 1940 Act
and the rules thereunder, as the same may be amended from time to
time, pertaining to the various functions (described above)
performed by it and not otherwise created and maintained by
another party pursuant to contract with the Trust. All records
shall be the property of the Trust at all times and shall be
available for inspection and use by the Trust. Where applicable,
such records shall be maintained by Xxxxxx Square for the periods
and in the places required by Rule 31a-2 under the 1940 Act.
6. AUDIT, INSPECTION AND VISITATION. Xxxxxx Square shall
make available during regular business hours all records and
other data created and maintained pursuant to the foregoing
provisions of this Agreement for reasonable audit and inspection
by the Trust, any person retained by the Trust or any regulatory
agency having authority over the Trust.
7. APPOINTMENT OF AGENTS. Xxxxxx Square may at any time
or times in its discretion appoint (and may at any time remove)
other parties as its agent to carry out such of the provisions of
this Agreement as Xxxxxx Square may from time to time direct;
provided, however, that the appointment of any such agent shall
not relieve Xxxxxx Square of any of its responsibilities or
liabilities hereunder.
8. RIGHT TO RECEIVE ADVICE.
a. Advice of Trust. If Xxxxxx Square shall be in
doubt as to any action to be taken or omitted by it, it
may request, and shall receive, from the Trust
directions or advice, including oral or written
instructions where appropriate.
b. Advice of Counsel. If Xxxxxx Square shall be in
doubt as to any question of law involved in any action
to be taken or omitted by Xxxxxx Square, it may request
advice at the Trust's expense from counsel of its own
choosing (who may be the regularly retained counsel for
the Trust or Xxxxxx Square, at the option of Xxxxxx
Square).
c. Conflicting Advice. In case of conflict between
oral and written instructions received by Xxxxxx
Square, Xxxxxx Square shall be entitled to rely on and
follow written instructions alone. In case of conflict
between advice received from the Trust or Counsel under
(a) and (b) above, Xxxxxx Square shall be entitled to
rely on and follow advice obtained in accordance with
(b) above.
d. Protection of Xxxxxx Square. Xxxxxx Square shall
be protected in any action or inaction which it takes
in reliance on any directions, advice or oral or
written Instructions received pursuant to subsections a
or b of this Section which Xxxxxx Square, after receipt
of any such directions, advice or oral or written
instructions, in good faith believes to be consistent
with such directions, advice or oral or written
instructions, as the case may be. However, nothing in
this Section shall be construed as imposing upon Xxxxxx
Square any obligation (i) to seek such direction,
advice or oral or written instructions, or (ii) to act
in accordance with such directions, advice or oral or
written instructions when received, unless, under the
terms of another provision of this Agreement, the same
is a condition to Xxxxxx Square's properly taking or
omitting to take such action.
9. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS.
Except as otherwise provided herein, the Trust assumes full
responsibility for ensuring that the Trust complies with all
applicable requirements of the Securities Act of 1933, as amended
(the "1933 Act"), the Securities Exchange Act of 1934, as amended
(the "1934 Act"), the 1940 Act, the Commodity Exchange Act and
any laws, rules and regulations of governmental authorities
having jurisdiction.
10. COMPENSATION. For the performance of its obligations
under this Agreement, each Fund shall pay Xxxxxx Square an
administrative fee with respect to each Fund in accordance with
the fee arrangements described in Schedule A attached hereto, as
such schedule may be amended from time to time.
11. USE OF XXXXXX SQUARE'S NAME. The Trust shall not use
the name of Xxxxxx Square or any of its affiliates in any
Prospectus, SAI, sales literature or other material relating to
the Trust in a manner not approved prior thereto in writing by
Xxxxxx Square; provided, however, that Xxxxxx Square shall
approve all uses of its and its affiliates' names that merely
refer in accurate terms to their appointments hereunder or that
are required by the SEC or a state securities commission; and
further provided, that in no event shall such approval be
unreasonably withheld.
12. USE OF TRUST'S NAME. Neither Xxxxxx Square nor any of
its affiliates shall use the name of the Trust or material
relating to the Trust on any forms (including any checks, bank
drafts or bank statements) for other than internal use in a
manner not approved prior thereto by the Trust; provided,
however, that the Trust shall approve all uses of its name that
merely refer in accurate terms to the appointment of Xxxxxx
Square hereunder or that are required by the SEC or a state
securities commission; and further provided, that in no event
shall such approval be unreasonably withheld.
13. LIABILITY OF XXXXXX SQUARE OR AFFILIATES. Neither
Xxxxxx Square nor any officer, director, or employee of Xxxxxx
Square, nor any person who controls Xxxxxx Square within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act (collectively, "Xxxxxx Square Affiliates") shall be
liable for any error of judgment or mistake of law or for any
loss suffered by the Trust in connection with the matters to
which this Agreement relates, except to the extent of a loss
resulting from willful misfeasance, bad faith, gross negligence
or reckless disregard of such person's obligations and duties
under this Agreement. Any person, even though also an officer,
director, employee or agent of Xxxxxx Square or any of its
affiliates who may be or become an officer or director of the
Trust, shall be deemed, when rendering services to the Trust as
such officer or acting on any business of the Trust in such
capacity (other than services or business in connection with
Xxxxxx Square's duties under this Agreement), to be rendering
such services to or acting solely for the Trust and not as an
officer, director, employee or agent or one under the control or
direction of Xxxxxx Square or any of its affiliates, even though
paid by one of those entities. Xxxxxx Square shall not be liable
or responsible for any acts or omissions of any predecessor
administrator or any other persons having responsibility for
matters to which this Agreement relates nor shall Xxxxxx Square
be responsible for reviewing any such act or omissions.
14. INDEMNIFICATION.
a. The Trust agrees to indemnify and hold harmless
Xxxxxx Square and any person who is an Xxxxxx Square
Affiliate from all taxes, charges, expenses,
assessments, claims and liabilities including, without
limitation, liabilities arising under the 1933 Act, the
1934 Act or the 1940 Act and any applicable state and
foreign securities laws, and amendments thereto (the
"Securities Laws"), and expenses, including without
limitation reasonable attorneys' fees and
disbursements, arising directly or indirectly from any
action or omission to act which Xxxxxx Square takes (i)
at the request of or on the direction of or in reliance
on the advice of the Trust or (ii) upon oral or written
instructions. Neither Xxxxxx Square nor any Xxxxxx
Square Affiliate shall be indemnified against any
liability (or any expenses incident to such liability)
arising out of Xxxxxx Square's or any such affiliate's
own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties and obligations under
this Agreement.
b. Rodney Square agrees to indemnify and hold
harmless the Trust from all taxes, charges, expenses,
assessments, claims and liabilities arising from Xxxxxx
Square's obligations pursuant to this Agreement
(including, without limitation, liabilities arising
under the Securities Laws, and any state and foreign
securities laws, and amendments thereto) and expenses,
including (without limitation) reasonable attorneys'
fees and disbursements arising directly or indirectly
out of Xxxxxx Square's or its directors', officers',
employees', agents' and representatives own willful
misfeasance, bad faith, gross negligence or reckless
disregard of its duties and obligations under this
Agreement.
c. In order that the indemnification provisions
contained in this Section 14 shall apply, upon the
assertion of a claim for which either party may be
required to indemnify the other, the party seeking
indemnification shall promptly notify the other party
of such assertion, and shall keep the other party
advised with respect to all developments concerning
such claim. The party who may be required to indemnify
shall have the option to participate with the party
seeking indemnification in the defense of such claim.
The party seeking indemnification shall in no case
confess any claim or make any compromise in any case in
which the other party may be required to indemnify it
except with the other party's prior written consent.
15. RESPONSIBILITY OF XXXXXX SQUARE. In the performance of
its duties hereunder, Xxxxxx Square shall be obligated to
exercise care and diligence and to act in good faith and to use
its best efforts within reasonable limits in performing services
provided for under this Agreement. Xxxxxx Square shall be under
no duty to take any action on behalf of the Trust except as
specifically set forth or as may be specifically agreed to by
Xxxxxx Square in writing. Without limiting the generality of the
foregoing or of any other provision of this Agreement, Xxxxxx
Square in connection with its duties under this Agreement shall
not be under any duty or obligation to inquire into and shall not
be liable for or in respect of (i) the validity or invalidity or
authority or lack thereof of any oral or written instruction,
notice or other instrument which conforms to the applicable
requirements of this Agreement, and which Xxxxxx Square
reasonably believes to be genuine; or (ii) delays or errors or
loss of data occurring by reason of circumstances beyond Xxxxxx
Square's control, including acts of civil or military authority,
national emergencies, labor difficulties, fire, mechanical
breakdown, flood or catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or
power supply, which circumstances Xxxxxx Square shall take
minimal actions to minimize loss of data therefor.
16. DURATION, TERMINATION, ETC. The provisions of this
Agreement may not be changed, waived, discharged or terminated
orally, but only by written instrument that shall make specific
reference to this Agreement and that shall be signed by the party
against which enforcement of such change, waiver, discharge or
termination is sought.
This Agreement shall become effective as of the day and
year first written above, and unless terminated as provided,
shall continue in force for three (3) years from the date of its
execution and thereafter from year to year, provided continuance
after the three (3) year period is approved at least annually by
a vote of the Trustees of the Trust. This Agreement may at any
time be terminated on sixty (60) days' written notice given to
Xxxxxx Square or by Xxxxxx Square by six (6) months' written
notice given to the Trust; provided, however, that the foregoing
provisions of this Agreement may be terminated immediately at any
time for cause either by the Trust or by Xxxxxx Square in the
event that such cause shall have remained unremedied for sixty
(60) days or more after receipt of written specification of such
cause. Any such termination shall not affect the rights and
obligations of the parties under Section 13 hereof.
Upon the termination of this Agreement, the Trust shall
pay to Xxxxxx Square such compensation as may be payable for the
period prior to the effective date of such termination, including
reimbursement for any out-of-pocket expenses reasonably incurred
by Xxxxxx Square to such date. In the event that the Trust
designates a successor to any of Xxxxxx Square's obligations
hereunder, Xxxxxx Square shall, at the expense and direction of
the Trust, transfer to such successor all relevant books, records
and other data established or maintained by Xxxxxx Square under
the foregoing provisions.
17. AMENDMENTS. This Agreement or any part hereof may be
changed or waived only by an instrument in writing signed by the
party against which enforcement of such change or waiver is
sought.
Xxxxxx Square and the Trust shall regularly consult
with each other regarding Xxxxxx Square's performance of its
obligations and its compensation under the foregoing provisions.
In connection therewith, the Trust shall submit to Xxxxxx Square
at a reasonable time in advance of filing with the SEC copies of
any amended or supplemented registration statement of the Trust
(including exhibits) under the 1933 Act and the 1940 Act, and, a
reasonable time in advance of their proposed use, copies of any
amended or supplemented forms relating to any plan, program or
service offered by the Trust. Any change in such materials that
would require any change in Xxxxxx Square's obligations under the
foregoing provisions shall be subject to the burdened party's
approval, which shall not be unreasonably withheld. In the event
that a change in such documents or in the procedures contained
therein increases the cost to Xxxxxx Square of performing its
obligations hereunder by more than an insubstantial amount,
Xxxxxx Square shall be entitled to receive reasonable
compensation therefor.
18. NOTICE. Any notice under this Agreement shall be given
in writing addressed and delivered or mailed, postage prepaid, to
the other party to this Agreement at its principal place of
business.
19. SEVERABILITY. 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.
20. GOVERNING LAW. To the extent that state law has not
been preempted by the provisions of any law of the United States
heretofore or hereafter enacted, as the same may be amended from
time to time, this Agreement shall be administered, construed and
enforced according to the laws of the State of Delaware.
21. SHAREHOLDER LIABILITY. Xxxxxx Square is hereby
expressly put on notice of the limitation of shareholder
liability as set forth in the Agreement and Declaration of Trust
of the Trust and agree that obligations assumed by the Trust
under this Agreement shall be limited in all cases to the Trust
and its assets, and if the liability relates to one or more
Funds, the obligations hereunder shall be limited to the
respective assets of such Fund or Funds. Xxxxxx Square further
agrees that it shall not seek satisfaction of any such
obligations from the shareholders or any individual shareholder
of the Funds, nor from the Trustees or any individual Trustee of
the Trust.
22. MISCELLANEOUS. Each party agrees to perform such
further acts and execute such further documents as are necessary
to effectuate the purposes hereof. 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. This Agreement
may be executed in two counterparts, each of which taken together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first written above.
KALMAR POOLED INVESTMENT TRUST
By: /s/ Ford X. Xxxxxx, Xx.
-------------------------------
Ford X. Xxxxxx, Xx., President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx, President
ADMINISTRATION AGREEMENT
SCHEDULE A
KALMAR POOLED INVESTMENT TRUST
PORTFOLIO LISTING AND FEE SCHEDULE
For the services Xxxxxx Square provides under the Administration
Agreement attached hereto, Kalmar Pooled Investment Trust (the
"Trust") agrees to pay Xxxxxx Square an administration fee equal
to 0.15% of the first $50 million in assets, plus 0.10% of
assets over $50 million of average daily net assets for the year.
These fees are calculated on a group basis and are subject to a
$50,000 minimum for the first Portfolio and $20,000 minimum for
each additional Portfolio.
PORTFOLIOS
Kalmar "Growth-with-Value" Small Cap Fund
Kalmar "Growth-with-Value" Micro Cap Fund
This administration fee shall be payable monthly as soon as
practicable after the last day of each month based on the average
daily net assets of each Portfolio, as determined at the close of
business on each day throughout the month.
Out of pocket expenses shall be reimbursed by the Trust to Xxxxxx
Square or paid directly by the Trust.
LIQUIDATED DAMAGES:
Upon the termination of the attached Agreement within the
initial three (3) year term by the Trust or the Trust's Board of
Trustees, the Trust shall pay to Xxxxxx Square six (6) months of
base fees in liquidated damages.
