Exhibit (h)(1)
ADMINISTRATION AGREEMENT
AGREEMENT made as of October 12, 1999 by and between Commonfund Institutional
Funds, a Delaware business trust (the "Company"), and Investors Bank and Trust
Company, a Massachusetts trust company (the "Bank").
WHEREAS, the Company, a registered investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), consisting of the separate
portfolios listed on Appendix A hereto; and
WHEREAS, the Company desires to retain the Bank to render certain
administrative services to the Company and. the Bank is willing to render such
services.
NOW, THEREFORE, in consideration of the mutual covenants herein set forth, it
is agreed between the parties hereto as follows:
1. Appointment. The Company hereby appoints the Bank to act as Administrator of
the Company on the terms set forth in this Agreement. The Bank accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided.
2. Delivery of Documents. The Company has furnished the Bank with copies
properly certified or authenticated of each of the following:
(a) Resolutions of the Company's Board of Directors authorizing the
appointment of the Bank to provide certain administrative services to the
Company and approving this Agreement;
(b) The Company's Declaration of Trust and all amendments thereto (the
"Declaration");
(c) The Company's by-laws and all amendments thereto (the "By-Laws");
(d) The Company's agreements with all service providers which include any
investment advisory agreements, sub-investment advisory agreements, custody
agreements, distribution agreements and transfer agency agreements
(collectively, the "Agreements");
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(e) The Company's most recent Registration Statement on Form N-1A (the
"Registration Statement") under the Securities Act of 1933 and under the 1940
Act and all amendments thereto; and
(f) The Company's most recent prospectus and statement of additional
information (the "Prospectus"); and
(g) Such other certificates, documents or opinions as may mutually be
deemed necessary or appropriate for the Bank in the proper performance of its
duties hereunder.
The Company will immediately furnish the Bank with copies of all amendments of
or supplements to the foregoing. Furthermore, the Company will notify the Bank
as soon as possible of any matter which may materially affect the performance by
the Bank of its services under this Agreement.
3. Duties of Administrator. Subject to the supervision and direction of
the Board of Directors of the Company, the Bank, as Administrator, will assist
in conducting various aspects of the Company's administrative operations and
undertakes to perform the services described in Appendix B hereto. The Bank
may, from time to time, perform additional duties and functions which shall be
set forth in an amendment to such Appendix B executed by both parties. At such
time, the fee schedule included in Appendix C hereto shall be appropriately
amended.
In performing all services under this Agreement, the Bank shall act in
conformity with the Company's Declaration and By-Laws and the 1940 Act, as the
same may be amended from time to time, and the investment objectives,
investment policies and other practices and policies set forth in the Company's
Registration Statement, as the same may be amended from time to time.
Notwithstanding any item discussed herein, the Bank has no discretion over the
Company's assets or choice of investments and cannot be held liable for any
problem relating to such investments.
4. Duties of the Company.
(a) The Company is solely responsible (through its transfer agent or
otherwise) for (i) providing timely and accurate reports ("Daily Sales
Reports") which will enable the Bank as Administrator to monitor the total
number of shares sold in each state on a daily basis and (ii) identifying any
exempt transactions ("Exempt Transactions") which are to be excluded from the
Daily Sales Reports.
(b) The Company agrees to make its legal counsel available to the Bank for
instruction with respect to any matter of law arising in connection with the
Bank's duties hereunder, and the company further agrees that the Bank shall be
entitled to rely on such instruction without further investigation on the part
of the Bank.
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5. Fees and Expenses.
(a) For the services to be rendered and the facilities to be furnished by
the Bank, as provided for in this Agreement, the Company will compensate the
Bank in accordance with the fee schedule attached as Appendix C hereto. Such
fees do not include out-of-pocket disbursements (as delineated on the fee
schedule or other expenses with the prior approval of the Company's management)
of the Bank for which the Bank shall be entitled to xxxx the Company separately
and for which the Company shall reimburse the Bank.
(b) The Bank shall not be required to pay any expenses incurred by the
Company.
6. Limitation of Liability.
Notwithstanding anything in this Agreement to the contrary, in no event shall
the Bank or any of its officers, directors, employees or agents (collectively,
the "Bank Indemnified Parties") be liable to the Company, and the Company shall
indemnify and hold the Bank and the Bank Indemnified Parties harmless from and
against any and all loss, damage, liability, actions, suits, claims, costs and
expenses, including legal fees, (a "Claim") arising as a result of any act or
omission of the Bank or any Bank Indemnified Party under this Agreement, except
for any Claim resulting from the negligence, willful misfeasance or bad faith of
the Bank or any Bank Indemnified Party. Without limiting the foregoing, neither
the Bank nor the Bank Indemnified Parties shall be liable for, and the Bank and
the Bank Indemnified Parties shall be indemnified against, any Claim arising as
a result of: i) actions or omissions of the Fund, including, but not limited to,
inaccurate Daily Sales Reports and misidentification of Exempt Transactions or;
(ii) the offer or sale of any securities of the Fund in violation of (x) any
requirement under the federal securities laws or regulations, (y) any
requirement under the securities laws or regulations of any state, or (z) any
stop order or other determination or ruling by any federal or state agency with
respect to the offer or sale of such securities.
Notwithstanding anything in this Agreement to the contrary, in no event shall
the Company or any of its officers, directors, employees or agents
(collectively, the "Company Indemnified Parties") be liable to the Bank, and the
Bank shall indemnify and hold the Company and the Company Indemnified Parties
harmless from and against any and all claims arising as a result of any act or
omission of the Bank or any Bank Indemnified Party under this Agreement that
constitutes negligence, willful misfeasance or bad faith of the Bank or such
Bank Indemnified Party.
(c) Neither party shall be liable to the other for any loss, damage,
liability, action, suit, claim, cost or expense arising from any acts of God,
earthquakes, fires, floods, storms or other disturbances of nature, epidemics,
strikes, riots, nationalization, expropriation, currency restrictions, acts of
war, civil war or terrorism, insurrection, nuclear fusion, fission or radiation
other similar happenings or events that can not be controlled or contained by
such party. Neither party shall be liable to the other for any loss, damage,
liability, action, suit, claim, cost or expense arising from the interruption,
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loss or malfunction of utilities or transportation or the unavailability of
energy sources except to the extent such interruption, loss or malfunction is
reasonably foreseeable and subject to correction in a commercially reasonable
business continuity program.
(d) The Bank certifies that the occurrence in or use by the Bank's own
proprietary internal systems (the "Systems") of dates before or after January
1,2000 (the "Millennial Dates") will not adversely affect the performance of
the Systems with respect to date dependent data, computations, output or other
functions (including, without limitation, calculating, computing and
sequencing) and that the Systems will create, store and generate output data
related to or including Millennial Dates without errors or omissions ("Year
2000 Compliance").
The parties acknowledge that the Bank relies on automated data
communications with vendors, clients and other third parties, as well as
certain third party hardware and software providers such as Electronic Data
Systems. The Bank also relies on other third party relationships in the conduct
of its business. For example, the Bank relies on the services of the landlords
of its facilities, telecommunication companies, utilities and commercial
airlines, among others. The parties acknowledge that the Bank can make no
certification as to the Year 2000 Compliance of third-parties utilized by the
Bank in its day to day operations or with which the Systems interact or
communicate, from which the Systems receive data or to which the Systems send
data. The parties further acknowledge that while the Bank has contacted such
third-parties regarding Year 2000 Compliance and will use reasonable efforts to
monitor the status of such third-parties Year 2000 Compliance, failure by such
third-parties to achieve timely Year 2000 Compliance could adversely affect the
Bank's performance.
(e) The Bank may apply to the Company at any time for instructions and may
consult counsel for the Company, or its own counsel, and with accountants and
other experts with respect to any matter arising in connection with its duties
hereunder, and the Bank 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 so long as such action
does not result from willful misfeasance, bad faith or gross negligence by the
Bank. The Bank shall not be liable for any act or omission taken or not taken
in reliance upon any document, certificate or instrument which it reasonably
believes to be genuine and to be signed or presented by the proper person or
persons. The Bank shall not be held to have notice of any change of authority
of any officers, employees, or agents of the Company absent actual notice or
until receipt of written notice thereof has been received by the Bank from the
Company.
Notwithstanding anything to the contrary in this Agreement, in no event shall
the Bank be liable for special, incidental or consequential damages, even if
advised of the possibility of such damages.
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7. Termination of Agreement.
(a) The term of this Agreement shall be three years commencing upon the
date hereof (the "Initial Term'), unless earlier terminated as provided herein.
After the expiration of the Initial Term, the term of this Agreement shall
automatically renew for successive three-year terms (each a "Renewal Term")
unless notice of non-renewal is delivered by the non-renewing party to the
other party no later than ninety days prior to the expiration of the Initial
Term or any Renewal Term, as the case may be.
Either party hereto may terminate this Agreement prior to the expiration
of the Initial Term or any Renewal Term:
(i) in the event the other party violates any material provision of this
Agreement provided that the non-violating party gives written notice of such
violation to the violating party and the violating party does not cure such
violation within 90 days of receipt of such notice; and
(ii) if a majority of the Board of the Company reasonably determines that
the performance of the Bank under this Agreement has been unsatisfactory,
written notice (the "Notice") of such determination setting forth the reasons
for such determination shall be provided to the Bank. In the event the Bank
shall not, within thirty (30) days thereafter, cure identified deficiencies to
the satisfaction of the Board, the Company, with the authorization of the
Board, may terminate this Agreement.
(b) In the event of the termination of this Agreement, the Bank will upon
receipt or transmittal, as the case may be, of notice of termination, continue
nonetheless to discharge all of its obligations hereunder until designation by
the Company of a successor administrator and, upon appointment of a successor
administrator, shall commence and prosecute diligently to completion the
transfer of all functions performed by the Bank hereunder to successor or to
the Company or any other designee of the Company as the Company may direct. If
the Company does not select a successor administrator within ninety (90) days
from the date of delivery of notice of termination, the Bank may give the
Company a notice to quit. Sixty days thereafter the Bank shall be released from
any and all obligations under this Agreement.
(c) At any time after the termination of this Agreement, the Company may,
upon written request, have reasonable access to the records of the Bank
relating to its performance of its duties as Administrator.
8. Miscellaneous.
(a) Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Company or the Bank shall be
sufficiently given if addressed to that 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.
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To the Company:
Commonfund Institutional Funds
Attn: Treasurer
c/o Commonfund
000 Xxxx Xxxx Xxxx
Xxxxxxxx, XX 00000-0000
To the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxx, Senior Director, Client Management
With a copy to: Xxxx X. Xxxxx, General Counsel
(b) This Agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable without the written consent of the
other party.
(c) This Agreement shall be construed in accordance with the laws of
the Commonwealth of Massachusetts, without regard to its conflict of laws
provisions.
(d) 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.
(e) 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.
9. Confidentiality. All books, records, information and data pertaining to the
business of the other party which are exchanged or received pursuant to the
negotiation or the carrying out of this Agreement shall remain confidential,
and shall not be voluntarily disclosed to any other person, except as may be
required in the performance of duties hereunder or as otherwise required by
law.
10. Use of Name. The Company shall not use the name of the Bank or any of its
affiliates in any prospectus, sales literature or other material relating to
the Company in a manner not approved by the Bank prior thereto in writing;
provided however, that the approval of the Bank shall not be required for any
use of its name which merely refers in accurate and factual terms to its
appointment hereunder or which is required by the Securities and Exchange
Commission or any state securities authority or any other appropriate
regulatory, governmental or judicial authority; provided further, that in no
event shall such approval be unreasonably withheld or delayed.
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11. Several Obligations of the Funds. This Agreement is an agreement entered
into between the Bank and the Company with respect to each Fund. With respect
to any obligation of the Company on behalf of any Fund arising out of this
Agreement, the Bank shall look for payment or satisfaction of such obligation
solely to the assets of the Fund to which such obligation relates as though the
Bank had separately contracted with the Company by separate written instrument
with respect to each Fund.
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.
COMMONFUND INSTITUTIONAL FUNDS
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President & Treasurer
INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
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