Exhibit (h)(13)
AMENDED AND RESTATED
CO-ADMINISTRATION AGREEMENT
THIS AMENDED AND RESTATED CO-ADMINISTRATION AGREEMENT (the
"Agreement"), dated as of this ____ day of October, 1999 (the "Effective Date"),
by and among FIRST DATA INVESTOR SERVICES GROUP, INC. ("Investor Services
Group"), a Massachusetts corporation, THE NORTHERN TRUST COMPANY ("Northern"),
an Illinois state bank (each a "Co-Administrator" and collectively, the
"Co-Administrators"), and NORTHERN INSTITUTIONAL FUNDS (the "Fund"), a Delaware
business trust.
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the " 1940 Act");
and
WHEREAS, the Fund desires to retain the Co-Administrators to render
certain administrative services with respect to each investment portfolio listed
in Schedule A hereto, as the same may be amended from time to time by the
parties hereto (collectively, the "Portfolios"), and the Co-Administrators are
willing to render such services.
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein and intending to be legally bound hereby, the parties hereto
agree as follows:
Definitions.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"Advisory Agreement" shall mean the Investment Advisory Agreement between the
Fund and Northern dated March 31, 1998, as currently in effect and as
amended and/or superseded from time to time.
"Articles of Incorporation" shall mean the Articles of Incorporation,
Declaration of Trust, or other similar organizational document as the case
may be, of a party as the same may be amended from time to time.
"Assign" and "Assignment" shall have the same meaning herein as the term
"assignment" has in the 1940 Act.
"Authorized Person" shall be deemed to include (i) any Board Member or officer
of the Fund; or (ii) any person, whether or not such person is an officer
or employee of the Fund, duly authorized to give Oral Instructions or
Written Instructions on behalf of the Fund as indicated in writing to a
Co-Administrator from time to time.
"Board Members" shall mean the Directors or Trustees of the governing body of
the Fund, as the case may be.
"Board of Directors" shall mean the Board of Directors or Board of Trustees of
the Fund, as the case may be.
"By-Laws" shall mean the By-Laws of a party as the same may be amended from time
to time.
"Commission" shall mean the Securities and Exchange Commission.
"Custodian" refers to any custodian or subcustodian of securities and other
property, which the Fund may from time to time deposit, or cause to be
deposited or held under the name or account of such a custodian pursuant to
a custody agreement.
"1933Act" shall mean the Securities Act of 1933 and the rules and regulations
promulgated thereunder, all as amended from time to time.
"1940Act" shall mean the Investment Company Act of 1940 and the rules and
regulations promulgated thereunder, all as amended from time to time.
"OralInstructions" shall mean instructions, other than Written Instructions,
actually received by a Co-Administrator from a person reasonably believed
by a Co-Administrator to be an Authorized Person.
"Prospectus" shall mean the most recently dated Fund Prospectuses and Statements
of Additional Information, including any supplements thereto if any, which
has become effective under the 1933 Act and the 1940 Act.
"Shares" refers collectively to such shares of capital stock or beneficial
interest, as the case may be, or class thereof, of each respective
Portfolio of the Fund as may be issued from time to time.
"Written Instructions" shall mean a written communication signed by a person
reasonably believed by a Co-Administrator to be an Authorized Person and
actually received by a Co-Administrator. Written Instructions shall include
manually executed originals and authorized electronic transmissions,
including telefacsimile of a manually executed original or other process.
Appointment of the Co-Administrators.
The Fund hereby appoints Northern and Investor Services Group to act as
Co-Administrators of the Fund for the period and on the terms set forth in this
Agreement. Northern and Investor Services Group accept such appointment and
agree to render the services herein set forth for the compensation herein
provided. This Agreement shall be effective and binding on the parties hereto as
of the Effective Date.
Duties of the Co-Administrators.
Subject to the general supervision of the Board of Directors, the
Co-Administrators shall provide supervision of all aspects of the Fund's
operations (other than those referred to in paragraph 3(a) of the Advisory
Agreement) and perform the customary services of an administrator,
including but not limited to the corporate secretarial, treasury and blue
sky services set forth in Schedule B to this Agreement.
In performing their duties under this Agreement, the Co-Administrators: (a) will
act in accordance with the Articles of Incorporation, By-Laws, Prospectus and
with the Oral Instructions and Written Instructions of the Fund 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 necessary and appropriate. Furthermore, the Co-Administrators
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 any of its Portfolios and shall not provide any investment
advisory services to the Fund or any of its Portfolios under this Agreement.
In addition to the duties set forth herein, the Co-Administrators shall
perform such other duties and functions, and shall be paid such amounts
therefor, as may from time to time be agreed upon in writing between the
Fund and the Co-Administrators.
The Co-Administrators agree to provide the services described herein in
accordance with the performance standards annexed hereto as Exhibit 1 of
Schedule B and incorporated herein (the "Performance Standards"). Such
Performance Standards may be amended from time to time upon written
agreement by the parties.
The services of the Co-Administrators hereunder are not deemed exclusive and
the Co-Administrators shall be free to render similar services to others so
long as their services under this Agreement are not impaired thereby.
Recordkeeping and Other Information.
The Co-Administrators shall create and maintain all records required of them
pursuant to their duties hereunder and as set forth in Schedule B in
accordance with all applicable laws, rules and regulations, including
records required by Section 3l(a) of the 1940 Act. Where applicable, such
records shall be maintained by the Co-Administrators for the periods and in
the places required by Rule 31a-2 under the 1940 Act.
To the extent required by Section 31 of the 1940 Act, the Co-Administrators
agree that all such records prepared or maintained by the Co-Administrators
relating to the services to be performed by the Co-Administrators hereunder
are the property of the Fund and will be preserved, maintained and made
available in accordance with such section, and will be surrendered promptly
to the Fund on and in accordance with the Fund's request.
Fund Instructions.
A Co-Administrator will have no liability when acting upon Written or Oral
Instructions reasonably believed to have been executed or orally
communicated by an Author Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written
Instruction thereof from the Fund.
At any time, a Co-Administrator may request Written Instructions from the Fund
and may seek advice from legal counsel for the Fund, or its own legal
counsel, with respect to any matter arising in connection with this
Agreement, and it shall not be liable for any action taken or not taken in
good faith in accordance with such Written Instructions or in accordance
with the opinion of counsel for the Fund or for the Co-Administrator.
Written Instructions requested by a Co-Administrator will be provided by
the Fund within a reasonable period of time.
Each Co-Administrator, its officers, agents or employees, shall accept Oral
Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said representative is
an Authorized Person. The Fund agrees that all Oral Instructions shall be
followed within one business day by confirming Written Instructions, and
that the Fund's failure to so confirm shall not impair in any respect a
Co-Administrator's right to rely on Oral Instructions.
Compensation.
Each Co-Administrator will from time to time employ or associate with itself
such person or persons as the Co-Administrator may believe to be
particularly suited to assist it in performing services under this
Agreement. Such person or persons include officers and employees who are
employed by both the Co-Administrator and the Fund. The Co-Administrator
shall pay the compensation of such person or persons and no obligation
shall be incurred on behalf of the Fund in such respect.
The Co-Administrators shall not be required to pay any of the following expenses
incurred by the Fund: membership dues in the Investment Company Institute or any
similar organization; investment advisory fees; custody and transfer agency
fees; fees paid under any service or distribution plan adopted by the Fund;
costs of printing and mailing stock certificates; costs of typesetting and
printing of the Prospectus for regulatory purposes and for distribution to
existing shareholders of the Portfolios; costs of shareholders' reports and
notices; interest on borrowed money; brokerage commissions; stock exchange
listing fees; taxes and fees payable to federal, state and other governmental
agencies; fees of Board Members of the Fund who are not affiliated with the
Co-Administrators; outside auditing expenses; outside legal expenses; blue sky
registration or filing fees; or other expenses not specified in this Section 6.2
which may be properly payable by the Fund. The Co-Administrators shall not be
required to pay any blue sky registration or filing fees unless and until they
have received the amount of such fees from the Fund.
The Fund on behalf of each of the Portfolios will compensate the
Co-Administrators for the performance of their obligations hereunder in
accordance with the fees and charges set forth in the written Fee Schedule
annexed hereto as Schedule C and incorporated herein.
During the term of this Agreement, the Co-Administrators will pay all expenses
incurred by them in connection with the performance of their duties under
Article 3 and Article 4 hereof, other than those items listed in Section
6.2 and those out-of-pocket costs of the preparations, submissions,
updatings and filings of the Fund's Prospectus.
If in any fiscal year, the sum of a Portfolio's expenses (including the fee
payable pursuant to Section 6.3 hereof, but excluding the investment
advisory fee and transfer agency fee payable to Northern pursuant to its
agreements with the Fund, servicing fees, and extraordinary expenses such
as taxes, interest, and indemnification expenses) exceeds on an annualized
basis .10% of a Portfolio's average net assets (.25% for each International
Portfolio as defined in Schedule A to this Agreement) for such fiscal year,
the Co-Administrators will reimburse each Portfolio for the amount of such
excess in accordance with the following timetable. Expense reimbursements,
if any, will be calculated and paid monthly. The amount of the
reimbursement paid by the Co-Administrators to each Portfolio will be
computed as of the end of each month by (a) determining the difference
between the Portfolio's accrued annualized expense ratio and the above
percentage limitation; (b) multiplying this percentage by the Portfolio's
year to date average net asset value for such month to obtain the
cumulative dollar amount of such excess; and (c) subtracting from the
cumulative dollar amount of such excess the cumulative amount of
reimbursements made to such Portfolio by the Co-Administrators since the
beginning of the fiscal year. A positive remainder represents the amount to
be paid by the Co-Administrators to the Portfolio; a negative remainder
represents the amount to be paid by the Portfolio to the Co-Administrators.
Any compensation agreed to hereunder may be adjusted from time to time by the
unanimous consent of the parties.
Documents.
In connection with the appointment of the Co-Administrators, the Fund
shall, on or before the Effective Date, but in any case within a reasonable
period of time for the Co-Administrators to prepare to perform their duties
hereunder, deliver or caused to be delivered to the Co-Administrators the
documents set forth in the written schedule of fund documents annexed hereto as
Schedule D.
Fund Accounting System.
Each Co-Administrator shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights owned and/or developed by it in
connection with the services provided by such Co-Administrator to the Fund
pursuant to this Agreement (the "Co-Administrator System").
Each Co-Administrator hereby grants to the Fund a limited license to the
Co-Administrator System for the sole and limited purpose of having such
Co-Administrator provide the services contemplated hereunder and nothing
contained in this Agreement shall be construed or interpreted otherwise and
such license shall immediately terminate with the termination of this
Agreement.
In the event that the Fund, including any affiliate or agent of the Fund or
any third party acting on behalf of the Fund, is provided with direct
access to the Co-Administrator System, such direct access capability shall
be limited to direct entry to the Co-Administrator System by means of
on-line mainframe terminal entry or PC emulation of such mainframe
ten-terminal entry, and any other non-conforming method of transmission of
information to the Co-Administrator System is strictly prohibited without
the prior written consent of the particular Co-Administrator.
Representations and Warranties.
Investor Services Group represents and warrants to the Fund that:
it is a corporation duly organized, existing and in good standing under the laws
of the jurisdiction in which it is organized;
it is empowered under applicable laws and by its Articles of Incorporation and
By-Laws to enter into and perform the services contemplated by this
Agreement;
all requisite corporate proceedings have been taken to authorize it to enter
into this Agreement; and
it has and will continue to have access to the necessary facilities, equipment
and personnel to perform its duties and obligations under this Agreement.
Northern represents and warrants to the Fund that:
it is duly organized, existing and in good standing under the laws of the
jurisdiction in which it is organized;
it is empowered under applicable laws and by its Articles of Incorporation and
By-Laws to enter into and perform the services contemplated by this
Agreement;
all requisite corporate proceedings have been taken to authorize it to enter
into this Agreement; and
it has and will continue to have access to the necessary facilities, equipment
and personnel to perform its duties and obligations under this Agreement.
The Fund represents and warrants to each Co-Administrator that:
it is duly organized, existing and in good standing under the laws of the
jurisdiction in which it is organized;
it is empowered under applicable laws and by its Articles of Incorporation and
By-Laws to enter into this Agreement;
all corporate proceedings required by said Articles of Incorporation, By-Laws
and applicable laws have been taken to authorize it to enter into this
Agreement;
a registration statement under the 1933 Act and the 1940 Act on behalf of each
of the Portfolios is currently effective; and
as of the date hereof, each Portfolio is duly registered and lawfully eligible
for sale in each jurisdiction indicated for such Portfolio on the list
furnished to the Co-Administrators pursuant to Article 7 of this Agreement
and that it will notify the Co-Administrators immediately of any changes to
the aforementioned list.
Indemnification.
The Fund shall indemnify and hold each Co-Administrator 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 a Co-Administrator or for which
a Co-Administrator may be held to be liable in connection with this
Agreement or a Co-Administrator's performance hereunder (a "Claim"), unless
such Claim resulted from: (a) the willful misfeasance, bad faith or
negligence of such Co-Administrator in the performance of its duties
hereunder, or by reason of its reckless disregard thereof; or (b) such
Co-Administrator's breach of Article 14 of this Agreement.
The Fund agrees and acknowledges that the Co-Administrators have not prior to
the Effective Date assumed, and will not assume, any obligations or
liabilities arising out of the conduct by the Fund or its administrator
prior to the Effective Date of those duties which the Co-Administrators
have agreed to perform pursuant to this Agreement. The Fund further agrees
to indemnify each Co-Administrator against any losses, claims, damages or
liabilities to which a Co-Administrator may become subject in connection
with the conduct by the Fund or its administrator of such duties prior to
the Effective Date.
Each Co-Administrator jointly and severally shall indemnify and hold the Fund
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 the Fund or
for which the Fund may be held to be liable in connection with this
Agreement or the Fund's performance hereunder (a "Claim"), provided that
such Claim resulted from: (a) the willful misfeasance, bad faith or
negligence of such Co-Administrator in the performance of its duties
hereunder, or by reason of its reckless disregard thereof; or (b) such
Co-Administrator's breach of Article 14 of this Agreement.
In any case in which one party (the "Indemnifying Party") may be asked to
indemnify or hold another party (the "Indemnified Party") harmless, the
Indemnified Party will notify the Indemnifying Party in writing promptly
after identifying any situation which it believes presents or appears
likely to present a claim for indemnification (an "Indemnification Claim")
against the Indemnifying Party, although the failure to do so shall not
relieve the Indemnifying Party from any liability which it may otherwise
have to the Indemnified Party, and the Indemnified Party shall keep the
Indemnifying Party advised with respect to all developments concerning such
situation. The Indemnifying Party shall be entitled to participate at its
own expense in the defense, or if it so elects, to assume the defense of,
any Indemnification 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 of good standing chosen by the Indemnifying Party
and approved by the Indemnified Party, which approval shall not be
unreasonably withheld. In the event the Indemnifying Party elects to assume
the defense of any such Indemnification Claim and retain such counsel, the
Indemnified Party shall bear the fees and expenses of any additional
counsel retained by the Indemnified Party. In the event that the
Indemnifying Party does not elect to assume the defense of any such
Indemnification Claim, or in case the Indemnified Party reasonably does not
approve of counsel chosen by the Indemnifying Party, or in case there is a
conflict of interest between the Indemnifying Party or the Indemnified
Party, the Indemnifying Party will reimburse the Indemnified Party for the
fees and expenses of any counsel retained by the Indemnified Party. The
Indemnified Party will not confess any Indemnification 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 Article 10 shall
survive the termination of this Agreement.
Standard of Care.
The Co-Administrators shall at all times act in good faith and agree to use
their best efforts within commercially reasonable limits to ensure the
accuracy of all services performed under this Agreement, but assume no
responsibility for loss or damage to the Fund unless said errors are caused
by the Co-Administrators' willful misfeasance, bad faith or negligence in
the performance of their duties hereunder, or by reason of their reckless
disregard thereof.
Each party shall have the duty to mitigate damages for which another party may
become responsible.
Without in any way limiting the foregoing, in the event the Co-Administrators
shall provide blue sky services to the Fund, the Co-Administrators shall
have no liability for failing to file on a timely basis any material to be
provided by the Fund or its designee that the Co-Administrators have not
received on a timely basis from the Fund or its designee, nor shall the
Co-Administrators have any responsibility to review the accuracy or
adequacy of materials they receive from the Fund or its designee for
filing; nor shall the Co-Administrators have any liability for monetary
damages for the sale of securities in jurisdictions where Shares are not
properly registered, or in jurisdictions where Shares are sold in excess of
the lawfully registered amount, unless such failure of proper registration
or excess sales is due to the willful misfeasance, bad faith or negligence
of the Co-Administrators, or the reckless disregard of their duties
hereunder. The Co-Administrators shall not be liable for any errors which
result from inaccurate or inadequate information reported to the
Co-Administrators directly or indirectly from the Fund's transfer agent.
The Co-Administrators shall be under no obligation to investigate or
confirm the accuracy or adequacy of any information provided to the
Co-Administrators by the Fund's transfer agent.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL
ANY PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO ANY OTHER PARTY
FOR CONSEQUENTIAL DAMAGES.
Term and Termination.
This Agreement shall be effective on the Effective Date and, unless sooner
terminated as provided herein, shall continue until April 30, 2001 (the
"Initial Term").
Upon the expiration of the Initial Term, this Agreement shall continue
automatically for successive one-year terms ("Renewal Terms") with respect
to each Portfolio, provided such continuance is specifically approved at
least annually by (i) the Board of Directors or (ii) by a vote of a
majority (as defined in the 1940 Act and Rule 18f-2 thereunder) of the
outstanding voting securities of the particular Portfolio, provided that in
either event the continuance is also approved by a majority of the Board
Members who are not parties to this Agreement and who are not interested
persons (as defined in the 0000 Xxx) of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval.
The Fund may terminate this Agreement at any time after the Initial Term, with
or without cause, and without penalty, on at least sixty (60) days written
notice to the Co-Administrators.
Each Co-Administrator may terminate this Agreement with respect to itself at any
time after the Initial Term, with or without cause, and without penalty, on
at least sixty (60) days written notice to the Fund and the other
Co-Administrator.
The Fund may terminate this Agreement at any time during the Initial Term in
the event that the Fund or its shareholders incur damages in excess of one
hundred thousand dollars ($100,000) as a result of the willful misfeasance,
bad faith or negligence of the Co-Administrators, or the reckless disregard
of their duties hereunder. For this purpose, "damages" is defined as
damages caused by a single event, or cumulative series of events related to
the same matter, which generates a monetary loss to the Fund or its
shareholders. The Fund's right to terminate this Agreement pursuant to this
Section 12.5 shall remain effective even if the Co-Administrators have made
the Fund or its shareholders whole with respect to the damages caused.
The Fund may also terminate this Agreement at any time during the Initial Term,
regardless of the amount of damages to the Fund or its shareholders, in the
event that the Co-Administrators have failed to meet one of the performance
standards set forth in Exhibit 1 to Schedule B (a "Triggering Event"). The
Fund will provide the Co-Administrators with sixty (60) days written notice
if the Fund intends to exercise its option to terminate this Agreement
under this Section 12.6; provided, however, that such notice must be given
within sixty (60) days following the end of the month in which the
Triggering Event occurs. Notwithstanding the foregoing, the Fund's rights
under this Section 12.6 shall not become effective until ninety (90) days
following the Effective Date.
In the event this Agreement: (a) is terminated by the Fund pursuant to Section
12.5, Section 12.6 or Section 12.9 hereof; or (b) is not continued after
the expiration of the Initial Term or any Renewal Term, all reasonable
expenses associated with the movement of records and materials and
conversion thereof to a successor administrator shall be borne by the
Co-Administrators, and the Fund shall not be responsible for the
Co-Administrators' costs associated with such termination; provided,
however, that such expenses shall not exceed $25,000 in the event this
Agreement is not continued after the expiration of the Initial Term or any
Renewal Term. In the event this Agreement is terminated by the Fund
pursuant to any other provision of this Agreement, all reasonable expenses
associated with conversion to a successor administrator shall be borne by
the Fund.
Notwithstanding anything contained in this Agreement to the contrary, unless
this Agreement is terminated pursuant to Section 12.5, Section 12.6 or
Section 12.9 hereof, should the Fund move any of the services provided by
the Co-Administrators hereunder to a successor service provider during the
Initial Term, or should, during the Initial Term, all or substantially all
of the Fund's assets be merged with or purchased by another entity which
does not utilize the services of the Co-Administrators, the
Co-Administrators shall be entitled to receive fees from the Fund for the
period from the date of such movement, merger or purchase until the end of
the Initial Term (the "Unexpired Term"). The fees payable for the Unexpired
Term shall be accelerated to the date of such movement, merger or purchase
and shall be calculated in accordance with Section 6.3 herein at the asset
levels on such date. The expense reimbursements set forth in Section 6.5
hereof shall not apply to the Unexpired Term.
The Fund may terminate this Agreement upon its Assignment by a Co-Administrator
unless the conditions to an Assignment as set forth in Article 16 hereof
have been satisfied.
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 Fund
desires to have the Co-Administrators render services as administrator under the
terms hereof, the Fund shall so notify the Co-Administrators in writing, and if
the Co-Administrators agree in writing to provide such services, Schedule A
shall be deemed amended to include such additional Portfolios.
Confidentiality.
The parties agree that the Proprietary Information (defined below) is
confidential information of the parties and their respective licensers. The
Fund and the Co-Administrators shall exercise at least the same degree of
care, but not less than reasonable care, to safeguard the confidentiality
of the Proprietary Information of each other as they would exercise to
protect their own Proprietary Information. The Fund and the
Co-Administrators may use the Proprietary Information only to exercise
their respective rights or perform their respective duties under this
Agreement. Except as otherwise required by law, the Fund and the
Co-Administrators shall not duplicate, sell or disclose to others the
Proprietary Information of the other, in whole or in part, without the
prior written permission of the affected party. The Fund and the
Co-Administrators may, however, disclose Proprietary Information to their
respective employees who have a need to know the Proprietary Information to
perform work for the other, provided that the Fund and the
Co-Administrators shall use reasonable efforts to ensure that the
Proprietary Information is not duplicated or disclosed by their respective
employees in breach of this Agreement. The Fund and the Co-Administrators
may also disclose the Proprietary Information to independent contractors,
auditors and professional advisors, provided they first agree in writing to
be bound by confidentiality obligations substantially similar to this
Section 14.1. Notwithstanding the previous sentence, in no event shall
either the Fund or the Co-Administrators disclose the Proprietary
Information to any competitor of the other without specific, prior written
consent.
Proprietary Information means:
any data or information that is competitively sensitive material, and not
generally known to the public, including, but not limited to, information
about product plans, marketing strategies, finance, operations, customer
relationships, customer profiles, sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Fund or the Co-Administrators, their respective
subsidiaries and affiliated companies and the customers, clients and
suppliers of any of them;
any scientific or technical information, design, process, procedure, formula or
improvement that is commercially valuable and secret in the sense that its
confidentiality affords the Fund or the Co-Administrators a competitive
advantage over their competitors;
all confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, show-how and trade secrets, whether or not
patentable or copyrightable;
all documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment,
prototypes and models, and any other tangible manifestation of the
foregoing of any party hereto which now exist or come into the control or
possession of the other; and
with respect to the Fund, all records and other information relative to the Fund
and its prior, present or potential shareholders (and clients of such
shareholders).
The obligations of confidentiality and restriction on use herein shall not
apply to any Proprietary Information that a party proves:
Was in the public domain prior to the date of this Agreement or subsequently
came into the public domain through no fault of such party; or
Was lawfully received by the party from a third party free of any obligation of
confidence to such third party; or
Was already in the possession of the party prior to receipt thereof, directly
or indirectly, from the other party; or
Is required to be disclosed in a judicial or administrative proceeding after
all reasonable legal remedies for maintaining such information in
confidence have been exhausted including, but not limited to, giving the
other party as much advance notice of the possibility of such disclosure as
practical so the other party may attempt to stop such disclosure or obtain
a protective order concerning such disclosure; or
Is subsequently and independently developed by employees, consultants or
agents of the party without reference to the Proprietary Information
disclosed under this Agreement.
Notwithstanding the foregoing, it is hereby understood and agreed by the parties
hereto that any marketing strategies, customer profiles or administrative,
business or shareholder servicing plans or similar items prepared or
developed by the Co-Administrators for the benefit of the Fund shall be
considered the Proprietary Information of the Fund and nothing in this
Agreement shall be construed to prevent or prohibit the Fund from
disclosing such Proprietary Information to a successor administrator.
The obligations of the parties hereto under this Article 14 shall survive the
termination of this Agreement.
Force Maieure.
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 circumstances beyond such party's
reasonable control. In any such event, the non-performing party shall be excused
from any further performance and observance of the obligations so affected only
for as long as such circumstances prevail and such party continues to use
commercially reasonable efforts to recommence performance or observance as soon
as practicable.
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. Except for the pending acquisition of Investor Services Group
by PNC Bank Corp, this Agreement may not be assigned or otherwise transferred by
any party hereto without the prior written consent of the other parties;
provided, however, that each party may, in its sole discretion, Assign all its
right, title and interest in this Agreement to an entity controlling, controlled
by, or under common control with, such party, provided that, in the reasonable
judgment of the Board of Directors determine in its sole discretion within
ninety (90) days of receiving written notice of such Assignment: (i) the
financial capacity of a Co-Administrator's assignee is not materially less than
that of the Co-Administrator; (ii) the nature and quality of the services to be
provided hereunder are not materially adversely affected by such Assignment; and
(iii) the quality and capability of the personnel and facilities of a
Co-Administrator's assignee are not materially less than those of the
Co-Administrator. The Co-Administrators may, in their sole discretion, engage
subcontractors to perform any non-material or non-substantive obligations
contained in this Agreement that they are otherwise required to perform
hereunder, provided that the Co-Administrators shall be responsible for all
compensation payable to such subcontractors and shall remain responsible for the
acts and omissions of such subcontractors to the same extent that the
Co-Administrators are hereunder.
Noticee 17
Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Fund or a Co-Administrator shall be sufficiently
given if addressed to a 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 Fund:
Xxxxx X. Xxxxxx, Esq.
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx - X-0
Xxxxxxx, XX 00000
with a copy to:
W. Xxxxx XxXxxxxx, III, Esq.
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
To Northern:
Xxxxx X. Xxxxxx, Esq.
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx - X-0
Xxxxxxx, XX 00000
To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to Investor Services Group's General Counsel
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 (except as to Article 24 hereof which shall be construed in
accordance with the laws of the State of Delaware). 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 the parties hereby submit themselves to the
exclusive jurisdiction of those courts.
Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
Captions.0
The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
Publicity.
No party shall release or publish news releases, public announcements,
advertising or other publicity relating to this Agreement or to the transactions
contemplated by it without the prior review and written approval of the other
parties; provided, however, that a 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 parties.
Relationship of Parties.
The Co-Administrators agree that they are independent contractors and
not partners or co-venturers and nothing contained herein shall be interpreted
or construed otherwise.
Entire Agreement; Severability.
This Agreement, including all Schedules and Exhibits 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. 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. No such writing shall be effective as
against the Fund unless said writing is executed by the Chairman of the
Board of Directors or another person specifically designated by the Board
of Directors. No such writing shall be effective as against Northern unless
said writing is executed by the Vice President, Senior Vice President,
Executive Vice President or President of Northern. 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.
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 shall remain fully effective.
Board Member and Shareholder Liability.
This Agreement is executed by or on behalf of the Fund with respect to
each of the Portfolios and the obligations hereunder are not binding upon any of
the Board Members, officers or shareholders of the Fund individually but are
binding only upon the Portfolio to which such obligations pertain and the assets
and property of such Portfolio. All obligations of the Fund under this Agreement
shall apply only on a Portfolio-by-Portfolio basis, and the assets of one
Portfolio shall not be liable for the obligations of another Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the Effective Date.
NORTHERN INSTITUTIONAL FUNDS
By:
Name:
Title:
THE NORTHERN TRUST COMPANY
By:
Name:
Title:
FIRST DATA INVESTOR SERVICES
GROUP, INC,
By:
Name:
Title:
SCHEDULE A
LIST OF PORTFOLIOS
Non-International Portfolios:
Government Select Portfolio
Government Portfolio
Diversified Assets Portfolio
Tax-Exempt Portfolio
Municipal Portfolio
U.S. Government Securities Portfolio
Short-Intermediate Bond Portfolio
U.S. Treasury Index Portfolio
Bond Portfolio
Intermediate Bond Portfolio
Balanced Portfolio
Equity Index Portfolio
Diversified Growth Portfolio
Focused Growth Portfolio
Small Company Index Portfolio
Small Company Growth Portfolio
MidCap Growth Portfolio
MarketPower Portfolio
International Portfolios:
International Bond Portfolio
International Equity Index Portfolio
International Growth Portfolio
SCHEDULE B
DUTIES OF THE CO-ADMINISTRATORS
Maintaining office facilities (which may be in the offices of a Co-Administrator
or a corporate affiliate) and furnishing corporate officers for the Fund;
Furnishing data processing services, clerical services, and executive and
administrative services and standard stationery and office supplies;
Performing all functions ordinarily performed by the office of a corporate
treasurer, and furnishing the services and facilities ordinarily incident
thereto, as follows:
Expense accrual monitoring and payment of the
Fund's bills, preparing monthly reconciliation of the
Fund's expense records and updating projections of annual
expenses
Determining dividends
Calculating yields and total returns
Preparing materials for review by the Board of
Directors, e.g., written reports pursuant to Rules 2a-7,
10f-3, 17a-7, 17e-1 and 144A and the Fund's applicable
procedures
Tax and financial counsel
Creating expense pro formas for new Portfolios/classes
Reporting Fund statistical information to investment
company reporting agencies and associations (e.g., Lipper
Analytical Services, Inc. and the Investment Company
Institute)
Compliance testing (e.g., to test compliance with
applicable provisions of the Prospectus, 1940 Act and
Internal Revenue Code)
Preparing and submitting reports to the Fund's shareholders and the Commission
including, but not necessarily limited to, Annual Reports and Semi-Annual
Reports on Form N-SAR;
Preparing and printing financial statements;
Preparing monthly Portfolio profile reports;
Preparing and filing the Fund's federal and state tax returns (other than those
required to be filed by the Fund's custodian and transfer agent) and
providing shareholder tax information to the Fund's transfer agent;
Assisting the Fund's investment adviser, at the adviser's request, in monitoring
and developing compliance procedures for the Fund which will include, among
other matters, procedures to assist the adviser in monitoring compliance
with each Portfolio's investment objective, policies, restrictions, tax
matters and applicable laws and regulations;
Assisting in marketing strategy and product development;
Performing oversight/management responsibilities, including the following:
Supervision and coordination of transfer agent
Supervision and coordination of XXX custodian
Supervision and coordination of Fund custodian
Vendor management and invoicing
Daily report coordination
Media relations
Sales literature forms and development
Fund operations coordination
Management of auditor relationship
Oversight of Portfolio compliance and tax function
Performing "blue sky" compliance functions, as follows:
Effecting and maintaining, as the case may
be, the registration of Shares of the Fund for sale
under the securities laws of the jurisdictions listed
in the Written Instructions of the Fund, which
instructions will include the amount of Shares to be
registered as well as the warning threshold to be
maintained.
Filing with each appropriate jurisdiction
the appropriate materials relating to the Fund.
Providing to the Fund quarterly reports of
sales activity in each jurisdiction in accordance
with the Written Instructions of the Fund. Sales will
be reported by shareholder residence. NSCC trades and
order clearance will be reported by the state
provided by the dealer at the point of sale. Trades
by omnibus accounts will be reported by trustee state
of residence in accordance with the Written
Instructions of the Fund outlining the entities which
are permitted to maintain omnibus positions with the
Fund.
In the event sales of Shares in a particular
jurisdiction reach or exceed the warning levels
provided in the Written Instructions of the Fund, the
Co-Administrators will promptly notify the Fund with a
recommendation of the amount of Shares to be registered
in such jurisdiction and the fee for such registration.
The Co-Administrators will not register additional
Shares in such jurisdiction unless and until the
Co-Administrators shall have received Written
Instructions to do so.
If the Co-Administrators are instructed by the Fund
not to register Shares in a particular jurisdiction,
the Co-Administrators will use their best efforts to
cause any sales in such jurisdictions to be blocked,
and such sales will not be reported to the
Co-Administrators as sales of Shares of the Fund.
Performing corporate secretarial services including the following:
Assist in maintaining corporate records and good
standing status of Fund in its state of organization
Develop and maintain calendar of annual and quarterly
board approvals and regulatory filings
Prepare notice, agenda, memoranda, resolutions and
background materials for legal approvals at quarterly and
special board meetings and committee meetings; assemble and
distribute board materials for board meetings and committee
meetings; attend meetings; make presentations where
appropriate; prepare minutes; follow up on issues; prepare
such periodic and special reports as the Board Members may
reasonably request
Provide support for written consent votes where needed
Monitoring the Fund's arrangements with respect to services provided by
institutions ("Servicing Agents") to their customers who are the beneficial
owners of Shares, pursuant to agreements ("Servicing Agreements") between
the Fund and such Servicing Agents including:
Review the qualifications of Servicing Agents wishing
to enter into Servicing Agreements
Assist in the execution and delivery of Servicing Agreements
Report to the Board of Directors with
respect to the amounts paid or payable by the Fund
from time to time under the Servicing Agreements and
the nature of the services provided by Servicing
Agents.
Maintain appropriate records in connection with their
monitoring duties
Performing the following legal services:
Prepare and file annual Post-Effective Amendments to
the Fund's Registration Statement
Prepare and file Rule 24f-2 Notices
Prepare and file Forms N-SAR
Prepare and file Annual and Semi-Annual Financial Reports
Communicate significant regulatory or legislative
developments to Fund management and Board Members 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
Arrange D&O/E&O insurance and fidelity bond coverage for Fund
Assist in monitoring Fund Code of Ethics reporting and
provide such reports to the person designated under the
Fund's Code
Monitor handling of litigation by outside counsel and
non-routine regulatory matters
Assist in managing Commission audits of the Fund at the
investment adviser's principal place of business
Review sales material and advertising for Fund
Prospectus compliance
Assist in developing compliance guidelines and
procedures to improve overall compliance by Fund and service
providers
Prepare compliance manuals
Performing, in accordance with the Written Instructions of the Fund, Special
Legal Services in accordance with the pricing structure listed on the Fee
Schedule attached to this Agreement as Schedule C. Examples of such Special
Legal Services are:
Assist in new Portfolio start-up (to the extent
requested):
Coordinate time and responsibility schedules Prepare
Fund corporate documents Draft/file registration statement
(including investment objectives/policies and prospectuses)
Respond to and negotiate Commission comments Draft notice,
agenda and resolutions for organizational meeting; attend
board meeting; make presentations where appropriate; prepare
minutes and follow up on issues
Prepare proxy materials for special meetings of
shareholders (including fund merger documents)
Prepare Post-Effective Amendments for special purposes
(e.g., new funds or classes, changes in advisory
relationships, mergers, restructurings)
Assist in extraordinary non-recurring projects,
including providing consultative legal services, such as:
Arrange CDSC financial programs Prospectus simplification
Profile prospectuses Exemptive order applications Requests
for no-action letters
EXHIBIT 1 TO SCHEDULE B
PERFORMANCE STANDARDS
The Co-Administrators' obligation to meet the following Performance Standards
shall be measured in the aggregate with respect to all Portfolios of the Fund.
The Co-Administrators will report to the Fund 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 be based on the categories listed below. Note that
completion standards are measured in business days.
Fund Administration (Treasury and Reporting)Tax/Compliance
The following standards will be met 100% of the time:
All Commission and Internal Revenue Service ("IRS") regulatory
requirements will be met according to the deadlines set forth by the
Commission and the IRS
Notification to the Fund's investment adviser within two (2) business
days with compliance violations based on procedures established by and
among the Co-Administrators and the Fund.
Directors & Officers Errors & Omissions Insurance Coverage will be
reviewed annually
Rule 17g-1 Fidelity Bond filings will be made as required by the
regulations of the Commission
The following standard will be met 98% of the time:
Code of Ethics reporting forms will be circulated at least seven (7)
business days before each quarter end
Blue Sky
The following standard will be met 98% of the time:
Annual renewal filings will be submitted at least thirty (30) business
days prior to expiration
Filings of Prospectus and Annual Reports will be submitted within
fifteen (15) business days of printing/release
Legal Administration
The following standards will be met 98% of the time as measured on a quarterly
basis:
Board materials will be sent to the Fund for review at least
fourteen (14) business days prior to the Board meeting,
provided that all requested information has been received by
the Co-Administrators within agreed-upon time frames
Board materials will be sent to the Board Members at least
seven (7) business days prior to the Board meeting, provided
that all requested information has been received by the
Co-Administrators within agreed-upon time frames
Timely submission of sales literature to NASD, provided that
copies of such materials are provided to the Co-Administrators
or their affiliates on a timely basis
SCHEDULE C
FEE SCHEDULE
For the services rendered, expenses assumed, facilities furnished and
payments made by the Co-Administrators, as provided for in this Agreement, the
Fund, on behalf of each Portfolio, on the first business day of each month, will
pay to Northern, as agent for itself and Investor Services Group, a fee for the
previous month at the annualized rates listed below.
1. Standard Annual Fees: Non-International Portfolios:
.10% of each Portfolio's average daily net assets
International Portfolios:
.15% of each Portfolio's average daily net assets
The foregoing fee will be computed based on net assets on each day.
2. Fees for Special Legal Services: The Co-Administrators shall be entitled to
the following fee for the performance of any Special Legal Services as described
in Schedule B in accordance with the Written Instructions of the Fund: $185 per
hour subject to certain project caps as may be agreed to by the
Co-Administrators and the Fund. Services and charges may vary based on volume.
SCHEDULE D
FUND DOCUMENTS
Certified copy of the Articles of Incorporation of the Fund
Certified copy of the By-Laws of the Fund
Copy of the resolution of the Board of Directors
authorizing the execution and delivery of this
Agreement
Copies of all agreements between the Fund and its
service providers
A listing of all jurisdictions in which each Portfolio is
registered and lawfully available for sale as of the date of this
Agreement and all information relative to the monitoring of sales
and registrations of the Shares in such jurisdictions
The Fund's most recent post-effective amendment to its
registration statement
The Fund's Prospectus