EXHIBIT (k)(2)
ADMINISTRATION AGREEMENT
AGREEMENT made as of _______________, by and between each entity listed
on Exhibit A hereto (each, a "Fund"; collectively, the "Funds"), and The Bank of
New York, a New York banking organization (the "Administrator").
W I T N E S S E T H :
WHEREAS, each Fund is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, each Fund desires to retain the Administrator to provide
administration services for the portfolios identified on Exhibit A hereto (each,
a "Series") and the Administrator is willing to provide such services, all as
more fully set forth below;
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. Appointment.
Each Fund hereby appoints the Administrator as its agent for the term
of this Agreement to perform the services described herein. The Administrator
hereby accepts such appointment and agrees to perform the duties hereinafter set
forth.
2. Representations and Warranties.
Each Fund hereby represents and warrants to the Administrator, which
representations and warranties shall be deemed to be continuing, that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and
delivered by the Fund in accordance with all requisite action and constitutes a
valid and legally binding obligation of the Fund, enforceable in accordance with
its terms; and
(c) It is conducting its business in compliance with all
applicable laws and regulations, both state and federal, and has obtained all
regulatory licenses, approvals and consents necessary to carry on its business
as now conducted; there is no statute, regulation, rule, order or judgment
binding on it and no provision of its charter or by-laws, nor of any mortgage,
indenture, credit agreement or other contract binding on it or affecting its
property which would prohibit its execution or performance of this Agreement.
3. Delivery of Documents.
(a) Each Fund will promptly deliver to the Administrator true
and correct copies of each of the following documents as currently in effect and
will promptly deliver to it all future amendments and supplements thereto, if
any:
(i) The Fund's articles of incorporation or
other organizational document and all amendments thereto (the "Charter");
(ii) The Fund's bylaws (the "Bylaws");
(iii) Resolutions of the Fund's board of directors
or other governing body (the "Board") authorizing the execution, delivery and
performance of this Agreement by the Fund;
(iv) The Fund's registration statement most
recently filed with the Securities and Exchange Commission (the "SEC") relating
to the shares of the Fund (the "Registration Statement");
(v) The Fund's Notification of Registration
under the 1940 Act on Form N-8A filed with the SEC; and
(vi) The Fund's Prospectus and Statement of
Additional Information pertaining to the Series (collectively, the
"Prospectus").
(b) Each copy of the Charter shall be certified by the
Secretary of State (or other appropriate official) of the state of organization,
and if the Charter is required by law also to be filed with a county or other
officer or official body, a certificate of such filing shall be filed with a
certified copy submitted to the Administrator. Each copy of the Bylaws,
Registration Statement and Prospectus, and all amendments thereto, and copies of
Board resolutions, shall be certified by the Secretary or an Assistant Secretary
of the appropriate Fund.
(c) It shall be the sole responsibility of each Fund to
deliver to the Administrator its currently effective Prospectus and the
Administrator shall not be deemed to have notice of any information contained in
such Prospectus until it is actually received by the Administrator.
4. Duties and Obligations of the Administrator.
(a) Subject to the direction and control of each Fund's Board
and the provisions of this Agreement, the Administrator shall provide to each
Fund the administrative services set forth on Schedule I attached hereto.
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(b) In performing hereunder, the Administrator shall provide,
at its expense, office space, facilities, equipment and personnel.
(c) The Administrator shall not provide any services relating
to the management, investment advisory or sub-advisory functions of any Fund,
distribution of shares of any Fund, maintenance of any Fund's financial records
or other services normally performed by the Funds' respective counsel or
independent auditors.
(d) Upon receipt of a Fund's prior written consent (which
shall not be unreasonably withheld), the Administrator may delegate any of its
duties and obligations hereunder to any delegee or agent whenever and on such
terms and conditions as it deems necessary or appropriate. Notwithstanding the
foregoing, no Fund consent shall be required for any such delegation to any
other subsidiary of The Bank of New York Company, Inc. The Administrator shall
not be liable to any Fund for any loss or damage arising out of, or in
connection with, the actions or omissions to act of any delegee or agent
utilized hereunder so long as the Administrator acts in good faith and without
negligence or willful misconduct in the selection of such delegee or agent.
(e) Each Fund shall cause its officers, advisors, sponsor,
legal counsel, independent accountants, current administrator (if any) and
transfer agent to cooperate with the Administrator and to provide the
Administrator, upon its written request, with such information, documents and
advice relating to such Fund as is within the possession or knowledge of such
persons, in order to enable the Administrator to perform its duties hereunder.
In connection with its duties hereunder, the Administrator shall be entitled to
rely, and shall be held harmless by each Fund when acting in reliance, upon the
instructions, advice or any documents relating to such Fund provided to the
Administrator by any of the aforementioned persons. The Administrator shall not
be liable for any loss, damage or expense resulting from or arising out of the
failure of the Fund to cause any information, documents or advice to be provided
to the Administrator upon its written request as provided herein. All fees or
costs charged by such persons shall be borne by the appropriate Fund.
(f) Nothing in this Agreement shall limit or restrict the
Administrator, any affiliate of the Administrator or any officer or employee
thereof from acting as administrator for or with any third parties.
(g) The Administrator may apply to an officer of any Fund for
written instructions with respect to any matter arising in connection with the
Administrator's performance hereunder for such Fund, and the Administrator shall
not be liable for any action taken or omitted to be taken by it in good faith in
accordance with such instructions. Such application for instructions may, at the
option of the Administrator, set forth in writing any action proposed to be
taken or omitted to be taken by the Administrator with respect to its duties or
obligations under this Agreement and the date on and/or after which such action
shall be taken, and the Administrator shall not be liable for any action taken
or omitted to be taken in accordance with a proposal included in any
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such application on or after the date specified therein unless, prior to taking
or omitting to take any such action, the Administrator has received written
instructions in response to such application specifying the action to be taken
or omitted. The Administrator may consult with counsel to the appropriate Fund
or its own counsel, at such Fund's expense, and shall be fully protected with
respect to anything done or omitted by it in good faith in accordance with the
advice or opinion of such counsel.
(h) Notwithstanding any other provision contained in this
Agreement or any Schedule hereto, the Administrator shall have no duty or
obligation to with respect to, including, without limitation, any duty or
obligation to determine, or advise or notify any Fund of: (i) the taxable nature
of any distribution or amount received or deemed received by, or payable to, a
Fund, (ii) the taxable nature or effect on a Fund or its shareholders of any
corporate actions, class actions, tax reclaims, tax refunds or similar events,
(iii) the taxable nature or taxable amount of any distribution or dividend paid,
payable or deemed paid, by a Fund to it shareholders; or (iv) the effect under
any federal, state, or foreign income tax laws of a Fund making or not making
any distribution or dividend payment, or any election with respect thereto.
(i) The Administrator shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement and Schedule I hereto, and no covenant or obligation shall be
implied against the Administrator in connection with this Agreement.
5. Allocation of Expenses.
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance of this Agreement shall be paid by
the appropriate Fund, including but not limited to, organizational costs and
costs of maintaining corporate existence, taxes, interest, brokerage fees and
commissions, insurance premiums, compensation and expenses of such Fund's
trustees, directors, officers or employees, legal, accounting and audit
expenses, management, advisory, sub-advisory, administration and shareholder
servicing fees, charges of custodians, transfer and dividend disbursing agents,
expenses (including clerical expenses) incident to the issuance, redemption or
repurchase of Fund shares, fees and expenses incident to the registration or
qualification under federal or state securities laws of the Fund or its shares,
costs (including printing and mailing costs) of preparing and distributing
Prospectuses, reports, notices and proxy material to such Fund's shareholders,
all expenses incidental to holding meetings of such Fund's trustees, directors
and shareholders, and extraordinary expenses as may arise, including litigation
affecting such Fund and legal obligations relating thereto for which the Fund
may have to indemnify its trustees, directors and officers.
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6. Standard of Care; Indemnification.
(a) Except as otherwise provided herein, the Administrator
shall not be liable for any costs, expenses, damages, liabilities or claims
(including attorneys' and accountants' fees) incurred by a Fund, except those
costs, expenses, damages, liabilities or claims arising out of the
Administrator's own bad faith, gross negligence or willful misconduct. In no
event shall the Administrator be liable to any Fund or any third party for
special, indirect or consequential damages, or lost profits or loss of business,
arising under or in connection with this Agreement, even if previously informed
of the possibility of such damages and regardless of the form of action.
(b) Each Fund shall indemnify and hold harmless the
Administrator from and against any and all costs, expenses, damages, liabilities
and claims (including claims asserted by a Fund), and reasonable attorneys' and
accountants' fees relating thereto, which are sustained or incurred or which may
be asserted against the Administrator, by reason of or as a result of any action
taken or omitted to be taken by the Administrator in good faith hereunder or in
reliance upon (i) any law, act or regulation or official interpretation of the
same even though the same may thereafter have been altered, changed, amended or
repealed, (ii) such Fund's Registration Statement or Prospectus, (iii) any
instructions of an officer of such Fund, or (iv) any opinion of legal counsel
for such Fund or the Administrator, or arising out of transactions or other
activities of such Fund which occurred prior to the commencement of this
Agreement; provided, that no Fund shall indemnify the Administrator for costs,
expenses, damages, liabilities or claims arising out of the Administrator's own
gross negligence, bad faith or willful misconduct. This indemnity shall be a
continuing obligation of each Fund, its successors and assigns, notwithstanding
the termination of this Agreement.
(c) Actions taken or omitted in reliance on written
instructions, or upon any information, order, indenture, stock certificate,
power of attorney, assignment, affidavit or other instrument believed by the
Administrator to be genuine or bearing the signature of a person or persons
believed to be authorized to sign, countersign or execute the same, or upon the
opinion of legal counsel for a Fund or its own counsel, shall be conclusively
presumed to have been taken or omitted in good faith. In no event shall the Bank
be required to accept or act upon any oral instructions; regardless of the
circumstances.
7. Compensation.
For the services provided hereunder, each Fund agrees to pay the
Administrator such compensation as is mutually agreed from time to time and such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, record retention costs, reproduction charges and transportation and
lodging costs) as are incurred by the Administrator in performing its duties
hereunder. Except as hereinafter set forth, compensation shall be calculated and
accrued daily and paid monthly. Each Fund authorizes the Administrator to debit
such Fund's custody account for all amounts due
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and payable hereunder. The Administrator shall deliver to each Fund invoices for
services rendered after debiting such Fund's custody account with an indication
that payment has been made. Upon termination of this Agreement before the end of
any month, the compensation for such part of a month shall be prorated according
to the proportion which such period bears to the full monthly period and shall
be payable upon the effective date of termination of this Agreement. For the
purpose of determining compensation payable to the Administrator, each Fund's
net asset value shall be computed at the times and in the manner specified in
the Fund's Prospectus.
8. Term of Agreement.
This Agreement shall continue until terminated by either the
Administrator giving to a Fund, or a Fund giving to the Administrator, a notice
in writing specifying the date of such termination, which date shall be not less
than 30 days after the date of the giving of such notice. Upon termination
hereof, the affected Fund(s) shall pay to the Administrator such compensation as
may be due as of the date of such termination, and shall reimburse the
Administrator for any disbursements and expenses made or incurred by the
Administrator and payable or reimbursable hereunder.
9. Force Majeure.
The Administrator shall not be responsible or liable for any failure or
delay in the 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 God; earthquakes; fires; floods;
wars; civil or military disturbances; sabotage; epidemics; riots; interruptions,
loss or malfunctions of utilities, computer (hardware or software) or
communications service; accidents; labor disputes; acts of civil or military
authority or governmental actions; it being understood that the Administrator
shall use its best efforts to resume performance as soon as practicable under
the circumstances.
10. Amendment.
This Agreement may not be amended or modified in any manner except by a
written agreement executed by the Administrator and the Fund to be bound
thereby, and authorized or approved by such Fund's Board.
11. Assignment.
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 by any Fund without the written consent
of the Administrator, or by the Administrator without the written consent of the
affected Fund accompanied by the authorization or approval of such Fund's Board.
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12. Governing Law; Consent to Jurisdiction.
This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflict of laws principles thereof. Each
Fund hereby consents to the jurisdiction of a state or federal court situated in
New York City, New York in connection with any dispute arising hereunder.
Customer and Custodian each hereby irrevocably waives any and all rights to
trial by jury in any legal proceeding arising out of or relating to this
Agreement. To the extent that in any jurisdiction any Fund may now or hereafter
be entitled to claim, for itself or its assets, immunity from suit, execution,
attachment (before or after judgment) or other legal process, such Fund
irrevocably agrees not to claim, and it hereby waives, such immunity.
13. Severability.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
14. No Waiver.
Each and every right granted to the Administrator hereunder or under
any other document delivered hereunder or in connection herewith, or allowed it
by law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of the Administrator to exercise, and no delay in
exercising, any right will operate as a waiver thereof, nor will any single or
partial exercise by the Administrator of any right preclude any other or future
exercise thereof or the exercise of any other right.
15. Notices.
All notices, requests, consents and other communications pursuant to
this Agreement in writing shall be sent as follows:
if to a Fund, at
_________________________________
_________________________________
_________________________________
Attention: _________________________________
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if to the Administrator, at
The Bank of New York
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Vice President
or at such other place as may from time to time be designated in
writing. Notices hereunder shall be effective upon receipt.
16. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
17. Several Obligations.
The parties acknowledge that the obligations of the Funds hereunder are
several and not joint, that no Fund shall be liable for any amount owing by
another Fund and that the Funds have executed one instrument for convenience
only.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by their duly authorized officers and their seals to
be hereunto affixed, all as of the day and year first above written.
By: __________________________
on behalf of each Fund
identified on Exhibit A
attached hereto
THE BANK OF NEW YORK
By: __________________________
Title:
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EXHIBIT A
Name of Fund
___________________________________________________
SCHEDULE I
ADMINISTRATIVE SERVICES
1. Maintain each Fund's minute book and its general corporate
records (other than accounting books and records).
2. Monitor and document compliance by each Fund with its policies
and restrictions as delineated in its Prospectus.
3. Participate in the periodic updating of each Fund's
Registration Statement and Prospectus and, subject to approval
by such Fund's Treasurer and legal counsel, coordinate the
preparation, filing, printing and dissemination of periodic
reports and other information to the SEC and the Fund's
shareholders, including annual and semi-annual reports to
shareholders, annual and semi-annual Form N-SAR and Form
N-CSR, notices pursuant to Rule 24(f)-2 and proxy materials.
4. Prepare federal, state and local income tax returns for each
Fund and Series and file such returns upon the approval of the
Funds' respective independent accountants; monitor and report
on Sub-Chapter M qualifications; prepare and file all Form
1099s with respect to each Fund's directors or trustees;
monitor compliance with Section 4982 of the Internal Revenue
Code; calculate and maintain records pertaining to Original
Issue Discount and premium amortization as required; perform
ongoing wash sales review (i.e., purchases and sales of Fund
investments within 30 days of each other).
5. Prepare and, subject to approval of each Fund's Treasurer,
disseminate to such Fund's Board quarterly unaudited financial
statements and schedules of such Fund's investments and make
presentations to the Board, as appropriate.
6. Subject to approval of each Fund's Board, assist such Fund in
obtaining fidelity bond and E&O/D&O insurance coverage.
7. Prepare statistical reports for outside information services
(e.g., IBC/Xxxxxxxx, ICI, Lipper Analytical and Morningstar).
8. Attend shareholder and Board meetings as requested from time
to time.
9. Establish appropriate expense accruals, maintain expense files
and coordinate the payment of invoices.
SCHEDULE I (CONTINUED)
ADMINISTRATIVE SERVICES
10. Blue Sky Services
- Subject to approval of each Fund's Board and its
legal counsel, perform initial registration for Funds
or Series in such states as each Fund shall identify
to the Administrator.
- Subject to approval of each Fund's Board and its
legal counsel, perform renewal registration for Funds
or Series in such states as each Fund shall identify
to the Administrator.
- Receive nightly downloads of sales data from transfer
agents.
- Update state/territory sales information for each
Fund or Series.
- Create and maintain state/territory sales information
worksheets for each Fund or Series.
- Monitor changes in Blue Sky laws and procedures for
all registered states/territories.
- Subject to approval of each Fund's legal counsel,
update filing requirements for all law and procedural
changes.
- Communicate directly with regulatory authorities in
states/territories as needed.
- Periodically attend Investment Company Institute
(ICI) State Liaison Committee meetings.
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