ICM SERIES TRUST
AMENDED AND RESTATED
ADMINISTRATION AGREEMENT
AGREEMENT made as of the 1st of January 2002 and amended the 20th day
of May 2004 and again on the 1st day of September 2004, by and between ICM
Series Trust, a Massachusetts business trust, with its principal office and
place of business at 00 Xxxxxx Xxxxx Xxxxxx, Xxxxxx, XX 00000 (the "Trust"), and
Forum Administrative Services, LLC, a Delaware limited liability company and a
wholly-owned subsidiary of Citibank, N.A., with its principal office and place
of business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 ("Forum").
WHEREAS, the Trust and Forum entered into that certain Administration
Agreement on January 1, 2002 (the "Agreement"); and
WHEREAS, certain other services are performed for the Trust by Forum
Accounting Services, LLC and Forum Shareholder Services, LLC, each a
wholly-owned subsidiary of Citibank, N.A., and together with Forum doing
business in the United States as the Fund Services group of Citigroup Global
Transaction Services ("Citigroup GTS Fund Services"); and
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 may issue its shares of beneficial interest, no par value (the "Shares"), in
separate series and classes; and
WHEREAS, the Trust offers shares in various series as listed in
Appendix A hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 6, being herein referred to as a "Fund," and collectively as the
"Funds") and the Trust offers shares of various classes of each Fund as listed
in Appendix A hereto (each such class together with all other classes
subsequently established by the Trust in a Fund being herein referred to as a
"Class," and collectively as the "Classes"); and
WHEREAS, the Trust desires that Forum perform certain administrative
services for each Fund and Class thereof and Forum is willing to provide those
services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Forum hereby agree to amend and
restate the Agreement as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust hereby appoints Forum, and Forum hereby agrees, to act as
administrator of the Trust for the period and on the terms set forth in this
Agreement.
(b) In connection therewith, the Trust has delivered to Forum copies
of: (i) the Trust's Declaration of Trust and Bylaws (collectively, as amended
from time to time, "Organizational Documents"); (ii) the Trust's Registration
Statement and all amendments thereto filed with the U.S. Securities and Exchange
Commission ("SEC") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the 1940 Act (the "Registration Statement"); (iii) the
Trust's current Prospectus and Statement of Additional Information of each Fund
(collectively, as currently in effect and as amended or supplemented, the
"Prospectus"); (iv) each plan of distribution or similar document adopted by the
Trust under Rule 12b-1 under the 1940 Act ("Plan") and each current shareholder
service plan or similar document adopted by the Trust ("Service Plan"); and (v)
all procedures adopted by the Trust with respect to the Funds (e.g., repurchase
agreement procedures), and shall promptly furnish Forum with all amendments of
or supplements to the foregoing. The Trust shall deliver to Forum a certified
copy of the resolution of the Board of Trustees of the Trust (the "Board")
appointing Forum and authorizing the execution and delivery of this Agreement.
SECTION 2. DUTIES OF FORUM
(a) Subject to the direction and control of the Board, Forum shall
manage all aspects of the Trust's operations with respect to the Funds except
those that are the responsibility of any other service provider hired by the
Trust, all in such manner and to such extent as may be authorized by the Board.
(b) With respect to the Trust or each Fund, as applicable, Forum shall:
(i) at the Trust's expense, provide the Trust with, or arrange for the
provision of, the services of persons competent to perform such
regulatory support, administrative and clerical functions not otherwise
described in this Section 2(b) as are necessary to provide effective
operation of the Trust;
(ii) oversee (A) the preparation and maintenance by the Trust's
custodian, transfer agent, dividend disbursing agent and fund
accountant in such form, for such periods and in such locations as may
be required by applicable United States law, of all documents and
records relating to the operation of the Trust required to be prepared
or maintained by the Trust or its agents pursuant to applicable law;
(B) the reconciliation of account information and balances among the
Trust's custodian, transfer agent, dividend disbursing agent and fund
accountant; (C) the transmission of purchase and redemption orders for
Shares; and (D) the performance of fund accounting, including the
calculation of the net asset value of the Shares;
(iii) oversee the performance of administrative and professional
services rendered to the Trust by others, including its custodian,
transfer agent and dividend disbursing agent as well as legal,
auditing, shareholder servicing and other services performed for the
Funds;
(iv) provide the Trust with adequate general office space and
facilities and provide persons suitable to the Board to serve as
officers of the Trust;
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(v) with the review of Trust counsel and with the cooperation of the
Trust's investment advisers, the officers of the Trust and other
relevant parties, prepare and disseminate materials for meetings of the
Board, as applicable, including a general report to the Board covering
the Trust's operations;
(vi) with the review of Trust counsel and approval by the Trust or the
Trust's investment adviser, Forum shall:
(a) Based on information from the Fund's investment adviser,
transfer agent, fund accountant, custodian, and distributor,
prepare for filing the following documents required to be filed
by the Trust with the SEC ("SEC Disclosure Filings") in either
written or, if required or permitted, electronic format (e.g.,
pursuant to XXXXX): (1) periodic and other requested updates to
the Registration Statement on Form N-1A or N-2, (2) prospectuses
for each Fund and prospectus supplements, and (3) if requested
and pursuant to mutually acceptable terms, proxy and information
statements and related communications to shareholders;
(b) Assist Trust counsel in preparing SEC exemptive order
requests and No-Action Letter requests.
(vii) based on information from the Fund's investment adviser, transfer
agent, fund accountant, custodian, and distributor, as applicable,
prepare for filing, and file or oversee the filing of, the following
documents required to be filed by the Trust with the SEC (1) Forms
N-CSR and N-SAR and any required financial data schedules, (2) Forms
N-PX, (3) Forms 24F, and (4) joint insurance policy filings (the
foregoing, together with SEC Disclosure Filings, being collectively
"SEC Filings");
(viii) Oversee the printing of SEC Filings that are intended to be
distributed to shareholders;
(ix) coordinate examinations of the Trust or a Fund by the staff of the
SEC or other regulatory authorities, the responses to those
examinations and the responses to general communications from those
authorities;
(x) assist the Trust and the Board in soliciting proposals for,
analyzing, securing and documenting fidelity bond and director & and
officers/errors & omissions insurance;
(ix) assist the Trust's investment advisers and other appropriate
persons with respect to regulatory compliance matters;
(x) prepare, with the review of Trust counsel, and file and maintain
the Trust's Organizational Documents and minutes of meetings of the
Board, Board committees and shareholders;
(xi) with the review of Trust counsel, prepare such filings as are
necessary to maintain the Trust's existence and good standing under
applicable state law;
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(xii) monitor sales of Shares, ensure that the Shares are properly and
duly registered with the SEC and register, or prepare applicable
filings with respect to, the Shares with the various state and other
securities commissions;
(xiii) advise the Trust and the Board on matters concerning the Trust
and its affairs;
(xiv) assist the Trust in the selection of other service providers,
such as independent accountants, law firms and proxy solicitors;
(xv) calculate, review and account for Fund expenses and report on Fund
expenses on a periodic basis;
(xvi) authorize the payment of Trust expenses and pay, from Trust
assets, all bills of the Trust;
(xvii) prepare Fund budgets, pro-forma financial statements, expense
and profit/loss projections and fee waiver/expense reimbursement
projections on a periodic basis;
(xviii) prepare financial statement expense information;
(xix) request any necessary information from the Trust's transfer
agent, fund accountant, investment advisers and distributor in order to
prepare, and prepare, the Trust's Form N-SAR twice a year and any
required financial data schedules;
(xx) prepare semi-annual financial statements and oversee the
production of the semi-annual financial statements and any related
report to the Trust's shareholders prepared by the Trust or its
investment advisers, as applicable;
(xxi) file the Funds' semi-annual financial statements with the SEC or
ensure that the Funds' semi-annual financial statements are filed with
the SEC and oversee the distribution of the financial statements to
shareholders;
(xxii) produce quarterly compliance reports for the Board;
(xxiii) calculate data with respect to yields, dividend yields,
distribution rates and total returns for dissemination to information
services covering the investment company industry, for advertising and
sales literature of the Trust and other appropriate purposes;
(xxiv) report Fund data to investment company industry survey companies
(i.e., Lipper Analytical Services, Inc.);
(xxv) maintain CUSIP, ticker, news media and tax identification number
listings;
(xxvi) report applicable data to rating agencies (such as Standard &
Poors) that rate a Fund;
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(xxvii) supervise the declaration of dividends and other distributions
to shareholders and prepare and distribute to appropriate parties
notices announcing the declaration of dividends and other distributions
to shareholders;
(xxviii) prepare Federal income and excise tax workpapers and
provisions;
(xxix) prepare, execute and file all Federal income and excise tax
returns and state income and other tax returns, including any
extensions or amendments, each as agreed between the Trust and Forum;
(xxx) calculate required Fund distributions to maintain the
qualification of each Fund as a regulated investment company under the
Internal Revenue Code of 1986, as amended (the "Code") and avoid, if
applicable, Federal excise tax;
(xxxi) perform other tax compliance and related reporting (limited to
calculation of Code Section 851(b) "good income" and "diversification"
testing, reporting the tax status of distributions and preparing
year-end Federal tax notice data);
(xxxii) prepare financial statement tax provisions (limited to sixty
(60) day shareholder tax notices disclosure, tax related footnotes and
Statement of Position 95-3 ("ROCSOP") adjustments);
(xxxiii) calculate income distributions for Funds that declare income
distributions more often than annually but not daily and calculate
capital gain distributions (in addition to typical calendar year end
capital gain distributions);
(xxxiv) perform monthly capital gain analyses based on book numbers
adjusted for prior year unpaid spillback distribution requirements and
capital loss carryforwards;
(xxxv) provide assurance letters to the Trust's auditors as requested;
(xxxvi) assist, in consultation with the Trust's counsel, in
understanding applicable U.S. laws and regulations;
(xxxvii) with the review of Trust counsel, prepare and/or review
agreements between the Trust and third parties; and
(xxxviii) review and authorize routine Section 24 filings.
(c) Forum shall provide such other services and assistance relating to the
affairs of the Trust as the Trust may, from time to time, reasonably request
pursuant to mutually acceptable compensation and implementation agreements.
(d) Forum shall maintain records relating to its services, such as
journals, ledger accounts and other records, as are required to be maintained
under the 1940 Act and Rule 31a-1 thereunder. The books and records pertaining
to the Trust that are in possession of Forum shall
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be the property of the Trust. The Trust, or the Trust's authorized
representatives, shall have access to such books and records at all times during
Forum's normal business hours. Upon the reasonable request of the Trust, copies
of any such books and records shall be provided promptly by Forum to the Trust
or the Trust's authorized representatives at the Trust's expense. In the event
the Trust designates a successor that shall assume any of Forum's obligations
hereunder, Forum shall, at the expense and direction of the Trust, transfer to
such successor all relevant books, records and other data established or
maintained by Forum under this Agreement.
(e) Nothing contained herein shall be construed to require Forum to perform
any service that could cause Forum to be deemed an investment adviser for
purposes of the 1940 Act or the Investment Advisers Act of 1940, as amended, or
that could cause a Fund to act in contravention of the Fund's Prospectus or any
provision of the 1940 Act. Except with respect to Forum's duties as set forth in
this Section 2 and except as otherwise specifically provided herein, the Trust
assumes all responsibility for ensuring that the Trust complies with all
applicable requirements of the Securities Act, the 1940 Act and any laws, rules
and regulations of governmental authorities with jurisdiction over the Trust.
All references to any law in this Agreement shall be deemed to include reference
to the applicable rules and regulations promulgated under authority of the law
and all official interpretations of such law or rules or regulations.
(f) In order for Forum to perform the services required by this Section 2,
the Trust (i) shall cause all service providers to the Trust to furnish any and
all information to Forum, and assist Forum as may be required and (ii) shall
ensure that Forum has access to all records and documents maintained by the
Trust or any service provider to the Trust.
SECTION 3. STANDARD OF CARE; LIMITATION OF LIABILITY;
INDEMNIFICATION
(a) Forum shall be under no duty to take any action except as specifically
set forth herein or as may be specifically agreed to by Forum in writing. Forum
shall use its best judgment and efforts in rendering the services described in
this Agreement. Forum shall not be liable to the Trust or any of the Trust's
shareholders for any action or inaction of Forum relating to any event
whatsoever in the absence of bad faith, willful misfeasance or negligence in the
performance of Forum's duties or obligations under this Agreement or by reason
of Forum's reckless disregard of its duties and obligations under this
Agreement.
(b) The Trust agrees to indemnify and hold harmless Forum, its employees
(as defined in Section 14(m)), directors and officers ("Forum Indemnitees"),
against and from any and all claims, demands, actions, suits, judgments,
liabilities, losses, damages, costs, charges, reasonable counsel fees and other
expenses of every nature and character arising out of Forum's actions taken or
failures to act with respect to a Fund that are consistent with the standard of
care set forth in Section 3(a) or based, if applicable, on good faith reliance
upon an item described in Section 3(d) (a "Forum Claim"). The Trust shall not be
required to indemnify any Forum Indemnitee if, prior to confessing any Forum
Claim against the Forum Indemnitee, Forum or the Forum Indemnitee does not give
the Trust written notice of and reasonable opportunity to defend against the
Forum Claim in its own name or in the name of the Forum Indemnitee.
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(c) Forum agrees to indemnify and hold harmless the Trust, its employees,
Trustees and officers ("Trust Indemnitees"), against and from any and all
claims, demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses of every nature and
character arising out of (i) Forum's actions taken or failures to act with
respect to a Fund that are not consistent with the standard of care set forth in
Section 3(a) or based, if applicable, on good faith reliance upon an item
described in Section 3(d), (ii) any breach of Forum's representation set forth
in Section 13 (a "Trust Claim"), (iii) any breach of this Agreement by Forum, or
(iv) Forum's violation of law. Forum shall not be required to indemnify any
Trust Indemnitee if, prior to confessing any Trust Claim against the Trust
Indemnitee, the Trust or the Trust Indemnitee does not give Forum written notice
of and reasonable opportunity to defend against the Trust Claim in its own name
or in the name of the Trust Indemnitee.
(d) A Forum Indemnitee shall not be liable for any action taken or failure
to act in reasonable and good faith reliance upon:
(i) the advice of the Trust, the Trust's outside counsel and the
Trust's independent accountants;
(ii) any oral instruction which it receives and which it reasonably
believes in good faith was transmitted by a person or persons
authorized by the Board to give such oral instruction. Provided that
Forum has such reasonable belief, Forum shall have no duty or
obligation to make any inquiry or effort of certification of such oral
instruction;
(iii) any written instruction or certified copy of any resolution of
the Board, and Forum may rely upon the genuineness of any such document
or copy thereof reasonably believed in good faith by Forum to have been
validly executed; or
(iv) as to genuineness, any signature, instruction, request, letter of
transmittal, certificate, opinion of counsel, statement, instrument,
report, notice, consent, order, or other document reasonably believed
in good faith by Forum to be genuine and to have been signed or
presented by the Trust or other proper party or parties;
and no Forum Indemnitee shall be under any duty or obligation to inquire into
the validity or invalidity or authority or lack thereof of any statement, oral
or written instruction, resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice, consent, order, or
any other document or instrument which Forum reasonably believes in good faith
to be genuine.
(e) Forum shall not be liable for the errors of other service providers
to the Trust or their systems, including the errors of pricing services (other
than to pursue all reasonable claims against the pricing service based on the
pricing services' standard contracts entered into by Forum) and errors in
information provided by an investment adviser (including prices and pricing
formulas and the untimely transmission of trade information), custodian or
transfer agent to the Trust, except to the extent such service provider is an
affiliate of Forum.
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SECTION 4. REPRESENTATIONS AND WARRANTIES
(a) Forum represents and warrants to the Trust that:
(i) It is a limited liability company duly organized and existing and
in good standing under the laws of the State of Delaware;
(ii) It is duly qualified to carry on its business in the State of
Maine;
(iii) It is empowered under applicable laws and by its Operating
Agreement to enter into this Agreement and perform its duties under
this Agreement;
(iv) All requisite corporate proceedings have been taken to authorize
it to enter into this Agreement and perform its duties under this
Agreement;
(v) It has access to the necessary facilities, equipment, and personnel
to perform its duties and obligations under this Agreement; and
(vi) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of Forum, enforceable against Forum
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
(b) The Trust represents and warrants to Forum that:
(i) It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(ii) It is empowered under applicable laws and by its Organizational
Documents to enter into this Agreement and perform its duties under
this Agreement;
(iii) All requisite corporate proceedings have been taken to authorize
it to enter into this Agreement and perform its duties under this
Agreement;
(iv) It is an open-end management investment company registered under
the 1940 Act;
(v) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Trust, enforceable against
the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties; and
(vi) A registration statement under the Securities Act is currently
effective and will remain effective, and appropriate State securities
law filings have been made and will continue to be made, with respect
to all Shares of the Funds and Classes of the Trust being offered for
sale.
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SECTION 5. COMPENSATION AND EXPENSES
(a) In consideration of the administrative services provided by Forum
pursuant to this Agreement, the Trust shall pay Forum, with respect to each
Class of each Fund the fees set forth in Appendix B hereto.
All fees payable hereunder shall be accrued daily by the Trust. The
fees payable for the services listed in clause (i) of Appendix B hereto shall be
payable monthly on the first day of each calendar month for services to be
performed during the following calendar month. The fees payable for the services
listed in clause (ii) and for all reimbursements as described in Section 5(b)
shall be payable monthly in arrears on the first day of each calendar month for
services performed during the prior calendar month. If fees payable for the
services listed in clause (i) begin to accrue in the middle of a month or if
this Agreement terminates before the end of any month, all fees for the period
from that date to the end of that month or from the beginning of that month to
the date of termination, as the case may be, shall be prorated according to the
proportion that the period bears to the full month in which the effectiveness or
termination occurs. Upon the termination of this Agreement with respect to a
Fund, the Trust shall pay to Forum such compensation as shall be payable prior
to the effective date of termination.
Nothing in this Agreement shall require Forum to perform any of the
services listed in Section 2(a)(xxix), as such services may be performed by the
Fund's independent accountant if appropriate.
(b) In connection with the services provided by Forum pursuant to this
Agreement, the Trust, on behalf of each Fund, agrees to reimburse Forum for the
expenses set forth in Clause (iii) of Appendix B hereto. Reimbursements shall be
payable as incurred. Should the Trust exercise its right to terminate this
Agreement, the Trust, on behalf of the applicable Fund, shall reimburse Forum
for all reasonably incurred out-of-pocket expenses and employee time (at 150% of
salary) associated with the copying and movement of records and material to any
successor person and providing assistance to any successor person in the
establishment of the accounts and records necessary to carry out the successor's
responsibilities. Any such expenses and charges shall be documented fully in the
invoice submitted to the Trust for payment.
(c) Forum may, with respect to questions of law relating to its
services hereunder, apply to and obtain the advice and opinion of counsel to the
Trust or counsel to Forum; provided, however, that Forum shall in all cases
first reasonably attempt to apply to and obtain the advice and opinion of
in-house counsel to the Administrator. The costs of any such advice or opinion
of counsel to the Trust shall be borne by the Trust.
(d) Notwithstanding anything in this Agreement to the contrary, Forum
and its affiliated persons may receive compensation or reimbursement from the
Trust with respect to: (i) the provision of services on behalf of the Funds in
accordance with any Plan or Service Plan; (ii) the provision of shareholder
support or other services; (iii) service as a trustee or officer of the Trust;
and (iv) services to the Trust, which may include the types of services
described in this Agreement, with respect to the creation of any Fund and the
start-up of the Fund's operations.
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(e) The Trust shall be responsible for and assumes the obligation for
payment of all of its expenses, including: (i) the fee payable under this
Agreement; (ii) the fees payable to each investment adviser under an agreement
between the investment adviser and the Trust; (iii) expenses of issue,
repurchase and redemption of Shares; (iv) interest charges, taxes and brokerage
fees and commissions; (v) premiums of insurance for the Trust, the Trustees and
officers and fidelity bond premiums; (vi) fees, interest charges and expenses of
third parties, including the Trust's independent accountants, custodians,
transfer agents, dividend disbursing agents and fund accountants; (vii) fees of
pricing, interest, dividend, credit and other reporting services; (viii) costs
of membership in trade associations; (ix) telecommunications expenses; (x) funds
transmission expenses; (xi) auditing, legal and compliance expenses; (xii) costs
of forming the Trust and maintaining its existence; (xiii) costs of preparing,
filing and printing the Trust's Prospectuses, subscription application forms and
shareholder reports and other communications and delivering them to existing
shareholders, whether of record or beneficial; (xiv) expenses of meetings of
shareholders and proxy solicitations therefor; (xv) costs of maintaining [books
of original entry] for portfolio and fund accounting and other required books
and accounts, of calculating the net asset value of Shares and of preparing tax
returns; (xvi) costs of reproduction, stationery, supplies and postage; (xvii)
fees and expenses of the Trust's Trustees and officers; (xviii) costs of Board,
Board committee, and other corporate meetings; (xix) SEC registration fees and
related expenses; (xx) state, territory or foreign securities laws registration
fees and related expenses; and (xxi) all fees and expenses paid by the Trust in
accordance with any Plan or Service Plan or agreement related to similar
manners.
SECTION 6. EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT
(a) This Agreement shall become effective with respect to each Fund or
Class on the date first written above. Upon effectiveness of this Agreement, it
shall supersede all previous agreements between the parties hereto covering the
subject matter hereof insofar as such Agreement may have been deemed to relate
to the Funds.
(b) This Agreement shall continue in effect with respect to a Fund
until terminated.
(c) This Agreement may be terminated with respect to a Fund at any
time, without the payment of any penalty (i) by the Board on sixty (60) days'
written notice to Forum or (ii) by Forum on sixty (60) days' written notice to
the Trust.
(d) The provisions of Sections 2(d), 3, 5(b), 6(d), 6(e), 8, 9, 13,
14(a) and 14(i) shall survive any termination of this Agreement.
(e) This Agreement and the rights and duties under this Agreement
otherwise shall not be assignable by either Forum or the Trust except by the
specific written consent of the other party. If the parties to this Agreement
consent to assignment of all or any part of this Agreement, all terms and
provisions of this Agreement shall be binding upon, inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto.
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SECTION 7. ADDITIONAL FUNDS AND CLASSES
In the event that the Trust establishes one or more series of Shares or
one or more classes of Shares after the effectiveness of this Agreement, such
series of Shares or classes of Shares, as the case may be, shall become Funds
and Classes under this Agreement. Forum or the Trust may elect not to make any
such series or classes subject to this Agreement.
SECTION 8. CONFIDENTIALITY
Forum agrees to treat all records and other information related to the
Trust as proprietary information of the Trust and, on behalf of itself and its
employees, to keep confidential all such information, except that Forum may:
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(b) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies;
(c) release such other information as approved by the Trust, which
approval shall not be withheld where Forum is advised by counsel that it may be
exposed to civil or criminal contempt proceedings for failure to release the
information (provided, however, that Forum shall seek the approval of the Trust
as promptly as possible so as to enable the Trust to pursue such legal or other
action as it may desire to prevent the release of such information) or when so
requested by the Trust; and
(d) Forum shall abide by the Trust's privacy policy pursuant to
Regulation S-P promulgated under Section 504 of the Xxxxx-Xxxxx-Xxxxxx Act.
SECTION 9. FORCE MAJEURE
Forum shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply. In addition, to the extent
Forum's obligations hereunder are to oversee or monitor the activities of third
parties, Forum shall not be liable for any failure or delay in the performance
of Forum's duties caused, directly or indirectly, by the failure or delay of
such third parties in performing their respective duties or cooperating
reasonably and in a timely manner with Forum.
SECTION 10. ACTIVITIES OF FORUM
(a) Except to the extent necessary to perform Forum's obligations under
this Agreement, nothing herein shall be deemed to limit or restrict Forum's
right, or the right of any of Forum's managers, officers or employees who also
may be a trustee, officer or employee of
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the Trust, or persons who are otherwise affiliated persons of the Trust to
engage in any other business or to devote time and attention to the management
or other aspects of any other business, whether of a similar or dissimilar
nature, or to render services of any kind to any other corporation, trust, firm,
individual or association.
(b) Subject to prior written approval of the Trust, Forum may
subcontract any or all of its functions or responsibilities pursuant to this
Agreement to one or more persons, which may be affiliated persons of Forum, who
agree to comply with the terms of this Agreement; provided, that any such
subcontracting shall not relieve Forum of its responsibilities hereunder. Forum
may pay those persons for their services, but no such payment will increase
Forum's compensation or reimbursement of expenses from the Trust.
SECTION 11. COOPERATION WITH INDEPENDENT ACCOUNTANTS
Forum shall cooperate, if applicable, with each Fund's independent
public accountants and shall take reasonable action to make all necessary
information available to the accountants for the performance of the accountants'
duties.
SECTION 12. SERVICE DAYS
Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity under this Agreement, to perform any functions or duties
on any day other than a business day of the Trust or of a Fund. Functions or
duties normally scheduled to be performed on any day which is not a business day
of the Trust or of a Fund shall be performed on, and as of, the next business
day, unless otherwise required by law.
SECTION 13. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of each Fund shall not
be liable for any obligations of the Trust or of the Funds under this Agreement,
and Forum agrees that, in asserting any rights or claims under this Agreement,
it shall look only to the assets and property of the Trust or the Fund to which
Forum's rights or claims relate in settlement of such rights or claims, and not
to the Trustees of the Trust or the shareholders of the Funds.
SECTION 14. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement.
(b) Except for Appendix A to add new Funds and Classes in accordance
with Section 7, no provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed by
both parties hereto.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
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(e) This Agreement may be executed by the parties hereto on any number
of counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid. This Agreement shall be construed as if drafted jointly by both Forum
and Trust and no presumptions shall arise favoring any party by virtue of
authorship of any provision of this Agreement.
(g) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by the
parties at their respective principal places of business set forth above, or at
such other address as a party may have designated in writing, shall be deemed to
have been properly given.
(i) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund of the Trust are separate and
distinct from the assets and liabilities of each other Fund and that no Fund
shall be liable or shall be charged for any debt, obligation or liability of any
other Fund, whether arising under this Agreement or otherwise.
(j) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on any day
other than a Fund business day. Functions or duties normally scheduled to be
performed on any day which is not a Fund business day shall be performed on, and
as of, the next Fund business day, unless otherwise required by law.
(k) Each of the undersigned warrants and represents that they have full
power and authority to sign this Agreement on behalf of the party indicated and
that their signature will bind the party indicated to the terms hereof and each
party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
(l) The terms "affiliated person" and "assignment" shall have the
meanings ascribed thereto in the 1940 Act.
(m) For purposes of this Agreement only, the term "employee," with
respect to Forum shall mean an employee of Citigroup GTS Fund Services, and not
of any parent, subsidiary or other affiliated company of Forum.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
ICM SERIES TRUST
By: /S/ XXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxxx
President
FORUM ADMINISTRATIVE SERVICES, LLC
By: /S/ XXXXXXX X. XXXXXXX
----------------------------
Xxxxxxx X. Xxxxxxx
Director
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ICM SERIES TRUST
ADMINISTRATION
APPENDIX A -- DATED MAY 20, 2004
FUNDS OF THE TRUST:
o ICM/Isabelle Small-Cap Value Fund
CLASSES OF THE TRUST:
o Investment Shares
o Institutional Shares
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