ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT is made as of March 1, 1998 (the
"Agreement"), by and between FIRST DATA INVESTOR SERVICES GROUP, INC., a
Massachusetts corporation ("FDISG"), and IBJ FUNDS TRUST, a Delaware business
trust (the "Company").
WHEREAS, the Company is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Company desires to retain FDISG 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 "Funds"), and FDISG is willing to render such
services;
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Company hereby appoints FDISG to act as Administrator
of the Company on the terms set forth in this Agreement. FDISG accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided. In the event that the Company decides to retain
FDISG to act as Administrator hereunder with respect to one or more portfolios
other than the Funds, the Company shall notify FDISG in writing. If FDISG is
willing to render such services, it shall notify the Company in writing
whereupon such portfolio shall become a Fund hereunder.
2. Delivery of Documents. The Company has furnished FDISG with copies
properly certified or authenticated of each of the following:
(a) Resolutions of the Company's Board of Trustees authorizing
the appointment of FDISG to provide certain administrative services required by
the Company for each Fund and approving this Agreement;
(b) The Company's Declaration of Trust (the "Declaration of
Trust") filed with the State of Delaware and all amendments thereto;
(c) The Company's By-Laws and all amendments thereto
(the "By-Laws");
(d) The Investment Advisory Agreement between IBJ Xxxxxxxx Bank &
Trust Co. (the "Adviser") and the Company dated as of November 18, 1994, and all
amendments thereto (the "Advisory Agreement");
(e) The Custody Agreement between IBJ Xxxxxxxx Bank & Trust
Company (the "Custodian") and the Company dated as of November 18, 1994, and all
amendments thereto (the "Custody Agreement");
(f) The Transfer Agency and Registrar Agreement between First Data Investor
Services Group, Inc. (the "Transfer Agent") and the Company dated as of March 1,
1998, and all amendments thereto;
(g) The Distribution Agreement between First Data Distributors, Inc. (the
"Distributor") and the
Company dated as of March 1, 1998 and all amendments thereto (the
"Distribution Agreement");
(h) The Company's Registration Statement on Form N-1A (the
"Registration Statement") under the Securities Act of 1933 and under the 1940
Act (File Nos. 3383430 and 8118738), as declared effective by the Securities and
Exchange Commission ("SEC") on November 9, 1994, relating to shares of the
Company's Shares of beneficial interest, $0.001 par value per share, and all
amendments thereto; and
(i) Each Fund's most recent prospectus and Statement of
Additional Information and all amendments and supplements thereto (collectively,
the "Prospectuses").
The Company will furnish FDISG from time to time with copies, properly
certified or authenticated, of all amendments of or supplements to the
foregoing. Furthermore, the Company will provide FDISG with any other documents
that FDISG may reasonably request and will notify FDISG as soon as possible of
any matter materially affecting the performance of FDISG of its services under
this Agreement.
3. Duties as Administrator. Subject to the supervision and direction of
the Board of Trustees of the Company, FDISG, as Administrator, will assist in
supervising various aspects of the Company's administrative operations and
undertakes to perform the following specific services:
(a) Maintaining office facilities (which may be in the offices of
FDISG or a corporate affiliate) and furnishing corporate officers for the
Company;
(b) Performing the functions ordinarily performed by a mutual
fund group's internal legal department as described in Schedule B to this
Agreement, furnishing data processing services, clerical services, and executive
and administrative services and standard stationery and office supplies in
connection with the foregoing;
(c) Accounting and bookkeeping services (including the
maintenance of such accounts, books and records of the Company as may be
required by Section 31(a) of the 1940 Act and the rules thereunder);
(d) Internal auditing;
(e) Performing all functions ordinarily performed by the office
of a corporate treasurer, and furnishing the services and facilities ordinarily
incident thereto, including calculating the net asset value of the shares in
conformity with the fund(s) prospectus;
(f) Preparing reports to the Company's shareholders of record and
the SEC including, but not necessarily limited to, Annual Reports and
Semi-Annual Reports on Form N-SAR;
(g) Preparing and filing various reports or other documents
required by federal, state and other applicable laws and regulations, other than
those filed or required to be filed by the Adviser or Transfer Agent;
(h) Preparing and filing the Company's tax returns;
(i) Assisting the Adviser, at the Adviser's request, in
monitoring and developing compliance procedures for the Company which will
include, among other matters, procedures to assist the Adviser in monitoring
compliance with each Fund's investment objective, policies, restrictions, tax
matters and applicable laws and regulations;
(j) Monitoring each Fund's compliance with certain investment
objectives, policies, restrictions, tax matters and applicable rules and
regulations as described in the Compliance Matrix provided by FDISG to the
Company;
(k) Performing all functions ordinarily performed by the office of
a corporate secretary, and furnishing the services and facilities incident
thereto, including all functions pertaining to matters organic to the
organization, existence and maintenance of the corporate franchise of the
Company, including preparation for, conduct of, and recording trustees' meetings
and shareholder meetings;
(l) Performing "Blue Sky" compliance functions, including
maintaining notice filings, registrations or "Blue Chip" exemptions (if
available) in all U.S. jurisdictions requested by the Company, monitoring sales
of shares in all such jurisdictions and filing such additional notice or
applying for such additional or amended registrations as may be reasonably
anticipated to be necessary to permit continuous sales of the shares of the
Funds in all such jurisdictions, filing sales literature and advertising
materials to the extent required, with such Blue Sky authorities, and making and
filing all other applications, reports, notices, documents and exhibits in
connection with the foregoing;
(m) Furnishing all other services identified on Schedule B annexed
hereto and incorporated herein which are not otherwise specifically set forth
above; and
(n) FDISG agrees to provide the services set forth herein in
accordance with 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.
In performing its duties under this Agreement, FDISG: (a) will act in
accordance with the Declaration of Trust, By-Laws, Prospectuses and with the
instructions and directions of the Company 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 Company, as
necessary and appropriate. Furthermore, FDISG 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 Company or any of its Funds
and shall not provide any investment advisory services to the Company or any of
its Funds.
4. Compensation and Allocation of Expenses. FDISG shall bear all expenses
in connection with the performance of its services under this Agreement, except
as indicated below.
(a) FDISG will from time to time employ or associate with itself
such person or persons as FDISG may believe to be particularly suited to assist
it in performing services under this Agreement. Such person or persons may be
officers and employees who are employed by both FDISG and the Company. The
compensation of such person or persons shall be paid by FDISG and no obligation
shall be incurred on behalf of the Company in such respect.
(b) FDISG shall not be required to pay any of the following
expenses incurred by the Company: membership dues in the Investment Company
Institute or any similar organization; investment advisory expenses; costs of
printing and mailing stock certificates, prospectuses, 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 Trustees of the Company who are not affiliated with FDISG; outside auditing
expenses; outside legal expenses; or other expenses not specified in this
Section 4 which may be properly payable by the Company.
(c) The Company on behalf of each of the Funds will compensate
FDISG for the performance of its obligations hereunder in accordance with the
fees set forth in the written Fee Schedule annexed hereto as Schedule C and
incorporated herein. Schedule C may be amended to add fee schedules for any
additional Funds for which FDISG has been retained as Administrator.
(d) The Company will compensate FDISG for its services rendered
pursuant to this Agreement in accordance with the fees set forth above. Such
fees do not include out-of-pocket disbursements of FDISG for which FDISG shall
be entitled to xxxx separately. Out-of-pocket disbursements shall include the
items specified in Schedule D annexed hereto and incorporated herein.
5. Limitation of Liability.
(a) FDISG shall not be liable for any error of judgment or mistake of law
or for any loss suffered by the Company in connection with the performance of
its obligations and duties under this Agreement, except a loss resulting from
FDISG's willful misfeasance, bad faith or negligence in the performance of such
obligations and duties, or by reason of its reckless disregard thereof.
(b) Each party shall have the duty to mitigate damages for which the
other party may become responsible.
(c) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL EITHER PARTY TO THIS AGREEMENT, ITS AFFILIATES OR ANY OF ITS OR
THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR
CONSEQUENTIAL DAMAGES.
6. Indemnification.
(a) The Company shall indemnify and hold FDISG 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 FDISG or for which FDISG may be held to be liable
in connection with this Agreement or FDISG's performance hereunder (a "Claim"),
unless such Claim resulted from a negligent act or omission to act or bad faith
by FDISG in the performance of its duties hereunder.
(b) FDISG shall indemnify and hold the Company 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 Company or for which the Company may be held
to be liable in connection with this Agreement (a "Claim"), provided that such
Claim resulted from a negligent act or omission to act, bad faith, willful
misfeasance or reckless disregard by FDISG in the performance of its duties
hereunder.
(c) In any case in which one party hereto (the "Indemnifying
Party") may be asked to indemnify or hold the other party (the "Indemnified
Party") harmless, the Indemnified Party will notify the Indemnifying Party
promptly after identifying any situation which it believes presents or appears
likely to present a claim for indemnification against the Indemnifying Party
although the failure to do so shall not prevent recovery by the Indemnified
Party and shall keep the Indemnifying Party advised with respect to all
developments concerning such situation. The Indemnified Party will not confess
any 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 Section
6 shall survive the termination of this Agreement.
7. Termination of Agreement.
(a) This Agreement shall be effective on the date first written
above and shall continue for a period of five (5) years (the "Initial Term"),
unless earlier terminated pursuant to the terms of this Agreement. Thereafter,
this Agreement may be terminated at any time without penalty on sixty (60) days
prior written notice.
(b) This Agreement may be terminated by the Company prior to the
expiration of the Initial Term in the event FDISG has failed to meet the
Performance Standards, as set forth in Exhibit 1 to Schedule D, in three
consecutive quarters. The Company will provide FDISG with sixty (60) days
written notice after the third consecutive quarter of FDISG's failure to meet
the Performance Standards if the Company intends to exercise this option under
this Section 7(b). Notwithstanding the foregoing, the Company's right under this
Section 7(b) shall not be effective until ninety (90) days after FDISG has begun
providing services under this Agreement. In the event that the Transfer Agency
and Services Agreement dated March 1, 1998 (the "Transfer Ageny Agreement"),
between FDISG and the Company is terminated by the Company because of a breach
by FDISG of certain performance standards as provided in Section 13.3 of the
Transfer Agency Agreement, this Agreement may be terminated by the Company upon
sixty (60) prior written notice to FDISG.
(c) In the event a termination notice is given by the Company,
all reasonable expenses associated with movement of records and materials and
conversion thereof ("Conversion Costs") will be borne by the Company; provided,
however, that in the event that such termination notice is given as a result of
a breach of the Performance Standards by FDISG with respect to the services to
be provided under this Agreement as outlined in Section 7(b) of this Agreement
or Section 13.3 of the Transfer Agency Agreement or a material breach by FDISG
of its duties and obligations hereunder as outlined in Section 7(d) of this
Agreement or Section 13.5 of the Transfer Agency Agreement, the Conversion Costs
shall be payable by FDISG.
(d) If a party hereto is guilty of a material failure to perform
its duties and obligations hereunder (a "Defaulting Party") resulting in a
material loss to the other party, such other party (the "Non-Defaulting Party")
may give written notice thereof to the Defaulting Party, and if such material
breach shall not have been remedied within thirty (30) days after such written
notice is given, then the Non-Defaulting Party may terminate this Agreement by
giving thirty (30) days written notice of such termination to the Defaulting
Party. If FDISG is the Non-Defaulting Party, its termination of this Agreement
shall not constitute a waiver of any other rights or remedies of FDISG with
respect to services performed prior to such termination or rights of FDISG to be
reimbursed for out-of-pocket expenses. In all cases, termination by the
Non-Defaulting Party shall not constitute a waiver by the Non-Defaulting Party
of any other rights it might have under this Agreement or otherwise against the
Defaulting Party.
8. Modifications and Waivers. No change, termination, modification, or
waiver of any term or condition of the Agreement shall be valid unless in
writing signed by each party. 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.
9. No Presumption Against Drafter. FDISG and the Company have jointly
participated in the negotiation and drafting of this Agreement. The Agreement
shall be construed as if drafted jointly by the Company and FDISG, and no
presumptions arise favoring any party by virtue of the authorship of any
provision of this Agreement.
10. Publicity. Neither FDISG nor the Company shall release or publish
news releases, public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it without prior review
and written approval of the other party; provided, however, that either party
may make such disclosures as are required by legal, accounting or regulatory
requirements.
11. Severability. 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,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
13. Miscellaneous.
(a) Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Company or FDISG shall be sufficiently
given if addressed to the 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 Company:
IBJ Funds Trust
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with a copy to:
Xxxxx & XxXxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
To FDISG:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to FDISG's General Counsel at the
same address
(b) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns and
is not intended to confer upon any other person any rights or remedies
hereunder. This Agreement may not be assigned or otherwise transferred by either
party hereto, without the prior written consent of the other party, which
consent shall not be unreasonably withheld. With the prior written consent of
the Company, FDISG may engage subcontractors to perform any of the obligations
contained in this Agreement to be performed by FDISG.
(c) The laws of the State of New York, excluding the laws on
conflicts of laws, shall govern the interpretation, validity, and enforcement of
this Agreement. All actions arising from or related to this Agreement shall be
brought in the state and federal courts sitting in the City of New York, and
FDISG and the Company hereby submit themselves to the exclusive jurisdiction of
those courts.
(d) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
(e) The captions of this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect.
(f) The Company and FDISG agree that the obligations of the
Company under the Agreement shall not be binding upon any of the Trustees,
shareholders, nominees, officers, employees or agents, whether past, present or
future, of the Company individually, but are binding only upon the assets and
property of the Company, as provided in the Declaration of Trust. The execution
and delivery of this Agreement have been authorized by the Trustees of the
Company, and signed by an authorized officer of the Company, acting as such, and
neither such authorization by such Trustees nor such execution and delivery by
such officer shall be deemed to have been made by any of them or any shareholder
of the Company individually or to impose any liability on any of them or any
shareholder of the Company personally, but shall bind only the assets and
property of the Company as provided in the Declaration of Trust.
13. Confidentiality.
(a) The parties agree that the Proprietary Information (defined
below) ("Confidential Information") are confidential information of the parties
and their respective licensers. The Company and FDISG shall exercise reasonable
care to safeguard the confidentiality of the Confidential Information of the
other. The Company and FDISG may each use the Confidential Information only to
exercise its rights or perform its duties under this Agreement. The Company and
FDISG shall not sell or disclose to others the Confidential Information of the
other, in whole or in part, without the prior written permission of the other
party. The Company and FDISG may, however, disclose Confidential Information to
its employees who have a need to know the Confidential Information to perform
work for the other, provided that each shall use reasonable efforts to ensure
that the Confidential Information is not duplicated or disclosed by its
employees in breach of this Agreement. The Company and FDISG may also disclose
the Confidential Information to independent contractors, auditors and
professional advisors and as legally required or requested by regulators.
Notwithstanding the previous sentence, in no event shall either the Company or
FDISG disclose the Confidential Information to any competitor of the other
without specific, prior written consent.
(b) Proprietary Information means:
(i) any data or information that is 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
Company or FDISG, their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them;
(ii) 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 Company or FDISG a competitive advantage
over its competitors; and
(iii) 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.
(c) Confidential Information may be memorialized in, without
limitation, documents, inventions, substances, engineering and laboratory
notebooks, drawings, diagrams, specifications, bills of material, equipment,
prototypes or models, and any other tangible manifestation of the foregoing of
either party which now exist or come into the control or possession of the
other.
(d) Each party acknowledges that breach of the restrictions on
use, dissemination or disclosure of any Confidential Information of the other
party would result in immediate and irreparable harm, and money damages would be
inadequate to compensate the other party for that harm. Each party shall be
entitled to equitable relief, in addition to all other available remedies, to
redress any such breach.
14. Force Majeure. 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 (i) fire, flood,
elements of nature or other acts of God; (ii) any outbreak or escalation of
hostilities, war, riots or civil disorders in any country, (iii) any act or
omission of the other party or any governmental authority; (iv) any labor
disputes (whether or not the employees' demands are reasonable or within the
party's power to satisfy); or (v) nonperformance by a third party or any similar
cause beyond the reasonable control of such party, including without limitation,
failures or fluctuations in telecommunications or other equipment, provided such
party shall have had reasonable back-up equipment available. In any such event,
the non-performing party shall be excused from any further performance and
observance of the obligations so affected only for so long as such circumstances
prevail and such party continues to use commercially reasonable efforts to
recommence performance or observance as soon as practicable.
15. Access to Books and Records. FDISG agrees to grant to the auditors
and regulators of the Company the same access to the books and records of the
Company held by FDISG as if such were held by the Company.
16. Year 2000. FDISG warrants that all equipment and software provided by
FDISG in connection with the services rendered hereunder includes or shall
include design and performance capabilities so that prior to, during and after
the calendar year 2000, they will not malfunction, produce invalid or incorrect
results, or abnormally cease to function due solely to the year 2000 date change
or any other problematic date, e.g. leap year, 9/9/1999. Such broader design and
performance capabilities shall include, without limitation, the ability to
recognize the century and manage and manipulate data involving dates, including
single century and multi-century formulas and date values, without resulting in
the generation of incorrect values involving such dates or causing an abnormal
ending; date data interfaces with functionalities and data fields that indicate
the century; and date-related functions that indicate the century. FDISG shall
upon request from time to time provide a status of the progress regarding this
provision.
17. Entire Agreement. This Agreement, including all Schedules 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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed and delivered by their duly authorized officers as of the date
first written above.
FIRST DATA INVESTOR SERVICES GROUP, INC.
By:
Name:
Title:
IBJ FUNDS TRUST
By:
Name:
Title:
SCHEDULE A
The Reserve Money Market Fund
The Core Fixed Income Fund
The Core Equity Fund
The Blended Total Return Fund
SCHEDULE B
Fund Accounting and Administrative Services
Routine Projects
o Daily, Weekly, and Monthly Reporting o Portfolio and General Ledger Accounting
o Daily Pricing of all Securities o Daily Valuation and NAV Calculation o
Comparison of NAV to market movement o Review of price tolerance/fluctuation
report
o Research items appearing on the price exception report
o Weekly cost monitoring along with marked-to-market valuations
in accordance with Rule 2a7
o Preparation of monthly ex-dividend monitor
o Daily cash reconciliation with the custodian bank
o Daily updating of price and rate information to the Transfer
Agent/Insurance Agent
o Daily support and report delivery to Portfolio Management
o Daily calculation of fund advisor fees and waivers
o Daily calculation of distribution rates
o Daily maintenance of each fund's general ledger including expense accruals
o Daily price notification to other vendors as required
o Calculation of 30-day adjusted SEC yields
o Preparation of month-end reconciliation package
o Monthly reconciliation of Fund expense records
o Preparation of monthly pay down gain/loss summaries
o Preparation of all annual and semi-annual audit work papers
o Preparation and Printing of Financial Statements
o Providing Shareholder Tax Information to Transfer Agent
o Producing Drafts of IRS and State Tax Returns
o Treasury Services including:
Provide Officer for the Fund
Expense Accrual Monitoring
Determination of Dividends
Prepare materials for review by the Board, e.g., 2a-7,10f-3, 17a-7,
17e-1, Rule 144a Tax and Financial Counsel
o Monthly Compliance Testing including Section 817H
SCHEDULE B (continued)
Legal, Regulatory and Board of Trustees Support
Routine Legal Services
Corporate Secretarial
o Assist in maintaining corporate records and good standing status of Fund in
its state of organization o Provide Secretary/Assistant Secretary for Fund o
Develop and maintain calendar of annual and quarterly board approvals and
regulatory filings o Prepare notice, agenda, memoranda, resolutions and
background materials for legal approval at quarterly and
special board meetings; attend meetings; make presentations where
appropriate; prepare minutes; follow up on
issues
Regulatory/Filings
o Prepare and file annual Post-Effective Amendment o Assist in preparation of
Fund Registration Statement o Prepare and file Rule 24f-2 and Rule 24e-2 Notices
o Prepare and file proxy materials (including merger documents) (one in a two
year period) o Review and file Form N-SAR o Review and file Annual and
Semi-Annual Financial Reports o Prepare prospectus supplements as needed
Miscellaneous Routine Legal Services o Communicate significant regulatory
or legislative developments to Fund management and directors and provide related
planning assistance where needed o Consult with Fund management regarding
portfolio compliance and Fund corporate and regulatory issues as needed o
Maintain effective communication with outside counsel and counsel for IBJ
Xxxxxxxx Bank and Trust Company and review legal bills of outside counsel o
Coordinate the printing and mailing process with outside printers for all
shareholder publications o Assist in managing SEC audits of Funds o Review sales
material and advertising for Fund SEC and NASD compliance o Assist in conversion
Coordinate time and responsibility schedules Draft notice, agenda, memoranda,
resolutions and background materials for board approval o Assist in new fund
start-up (to the extent requested) Coordinate time and responsibility schedules
Prepare Fund corporate documents (MTA/by-laws) Draft/file registration statement
(including investment objectives/policies and prospectuses) Respond to and
negotiate SEC comments Draft notice, agenda and resolutions for organizational
meeting; attend board meeting; make presentations where appropriate; prepare
minutes and follow up on issues o Arrange D&O/E&O insurance and fidelity bond
coverage for Fund o Assist in monitoring Fund Code of Ethics reporting and
provide such reports to Adviser o Assist in developing compliance guidelines and
procedures to improve overall compliance by Fund and service providers o Prepare
notice, agenda, memoranda and background materials for special board meetings,
make presentations where appropriate, prepare minutes and follow up on issues o
Prepare PEA for special purposes (e.g., new funds or classes, changes in
advisory relationships, mergers, restructurings) o Prepare special prospectus
supplements where needed o Assist in preparation of exemptive order applications
(one per year)
Exhibit 1 to Schedule B
Performance Standards
Pursuant to Section 3(n) of this Agreement, FDISG has agreed to perform
the services described in this Agreement in accordance with the Performance
Standards set forth in this Exhibit 1 to Schedule B. The parties agree that the
measurement of the Performance Standards will not begin until ninety (90) days
after FDISG has begun providing services under this Agreement. The parties agree
that each quarterly period, as described below, will be measured on a rolling
three calendar month period. The parties agree that such Performance Standards,
which are described below, may be revised from time to time upon the mutual
agreement of the parties. The parties agree that any new Funds that may be added
to the Company from time to time will be entitled to similar Performance
Standards and measuring periods.
(a) In the event that FDISG fails to meet a particular Performance
Standard category in any particular quarter, the Company will provide FDISG with
written notice of such failure, and FDISG agrees to take appropriate prompt
corrective action.
(b) In the event that FDISG fails to meet a particular Performance
Standard category (except for any failure due to circumstances beyond its
control) in two (2) consecutive quarters, the fee payable to FDISG hereunder for
such service shall be reduced by ten percent (10%) for the second of those two
quarters.
(c) In the event that FDISG fails to meet a particular Performance
Standard category (except for any failure due to circumstances beyond its
control) for any three (3) consecutive quarters, the Company shall have the
right to terminate this Agreement upon sixty (60) days' written notice to FDISG.
(d) Compliance with the Performance Standards shall be measured
quarterly based on the average performance during that quarter. In the event
that the number of Funds shall increase to five (5), compliance with the
Performance Standards shall then be measured monthly based on the average
performance during that month, except with respect to those services which are
provided only on a quarterly basis. A month shall be defined as a calendar
month.
(e) The Performance Standards shall be as follows:
SEE ATTACHED
SCHEDULE C
FEE SCHEDULE
For the services to be rendered, the facilities to be furnished and the
payments to be made by FDISG, as provided for in this Agreement, the Company, on
behalf of each Fund, will pay FDISG on the first business day of each month a
fee for the previous month at the rates listed below. The fee for the period
from the effective date of this Agreement to the end of such month shall be
prorated according to the proportion that such period bears to the full monthly
period. Upon any termination of this Agreement before the end of any month, the
fee 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 date
of termination of this Agreement.
Fund Accounting Services:
$35,000 per Fund per annum
$5,000 per class per annum for each class in excess of one class
Fund Administration Services:
Aggregate Assets Fee
Less than $500 million 0.15%
$500 million to $1 billion 0.10%
Greater than $1 billion 0.075%
FDISG shall be entitled to collect all out-of-pocket fees
described in Schedule D.
SCHEDULE D
OUT-OF-POCKET EXPENSES
Out-of-pocket expenses include the following:
- Postage of Board meeting materials and other materials to the
Company's Board members and service providers (including
overnight or other courier services)
- Telecommunications charges (including FAX) with respect to
communications with the Company's directors, officers and
service
providers
- Duplicating charges with respect to filings with federal
and state authorities
and Board meeting materials
- Courier services
- Pricing services
- Forms and supplies for the preparation of Board meetings
and other
materials for the Company
- Vendor set-up charges for Blue Sky services
- Customized programming requests
- Such other expenses as are agreed to by FDISG and the Company
