Exhibit (h)(1)
ADMINISTRATION AGREEMENT
AGREEMENT made this 1st day of April, 2003, between The Kensington
Funds (the "Trust"), a Delaware statutory trust having its principal place of
business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000, and BISYS FUND SERVICES OHIO,
INC. ("BISYS"), a Delaware corporation having its principal place of business at
0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust desires that BISYS perform administration services
for the Trust and each investment portfolio of the Trust, as now in existence or
as hereafter may be established from time to time (individually referred to
herein as the "Fund" and collectively as the "Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS and Trust wish to enter into this Agreement in order to
set forth the terms under which BISYS will perform the administration services
set forth herein for the Trust.
NOW, THEREFORE, in consideration of the covenants hereinafter
contained, the Trust and BISYS hereby agree as follows:
1. Retention of BISYS
The Trust hereby retains BISYS to act as the administrator of the Trust
and to furnish the Trust and Funds with the management and administrative
services as set forth in Article 2 below. BISYS hereby accepts such appointment
to perform the duties set forth below.
BISYS shall, for all purposes herein, be deemed to be an independent
contractor and, unless otherwise expressly provided or authorized, shall have no
authority to act for or represent the Trust in any way and shall not be deemed
an agent of the Trust.
2. Administrative Services
BISYS shall perform or supervise the performance by others of
administrative services in connection with the operations of the Trust and
Funds, and, on behalf of the Trust, shall investigate, assist in the selection
of and conduct relations with custodians, depositories, accountants, legal
counsel, underwriters, brokers and dealers, corporate fiduciaries, insurers,
banks and persons in any other capacity deemed to be necessary or desirable for
the Trust's and Funds' operations. BISYS shall provide the Board of Trustees of
the Trust (hereafter referred to as the "Board") with such reports regarding
investment performance as it may reasonably request but shall have no
responsibility for supervising the performance by any investment adviser or
sub-adviser of its responsibilities.
BISYS shall provide the Trust with all necessary office space,
equipment, personnel, compensation and facilities (including facilities for
shareholders' and Board of Trustees meetings) for handling the affairs of the
Trust and Funds and such other services as BISYS shall, from time to time,
determine to be necessary to perform its obligations under this Agreement. In
addition, at the request of the Trustees, BISYS shall make reports to the Board
concerning the performance of its obligations hereunder.
Without limiting the generality of the foregoing, BISYS shall:
(a) calculate contractual Trust expenses and control all disbursements
for the Trust, and as appropriate, compute the Trust's yields, total return,
expense ratios, portfolio turnover rate and, if required, portfolio average
dollar-weighted maturity;
(b) provide information and assistance to counsel to the Trust in
preparing (i) the annual update to the Trust's registration statement on Form
N-1A, (ii) other amendments to the Trust's registration statement and
supplements to its Prospectus and Statement of Additional Information, and (iii)
Notices of Annual or Special Meetings of shareholders of the Trust and proxy
materials relating thereto, and file any of the foregoing with the Securities
and Exchange Commission (the "SEC") upon the request of the Trust or counsel to
the Trust;
(c) prepare such reports, applications and documents (including reports
regarding the sale and redemption of shares of beneficial interest in the Trust
as may be required in order to comply with Federal and state securities laws) as
may be necessary or desirable to register the shares of beneficial interest in
the Trust ("Shares") with state securities authorities, monitor the sale of
Shares for compliance with state securities laws, and file with the appropriate
state securities authorities the registration statements and reports for the
Trust and the Shares and all amendments thereto, as may be necessary or
convenient to register and keep effective the registration of the Trust and the
Shares with state securities authorities to enable the Trust to make a
continuous offering of its Shares;
(d) coordinate and prepare, with the assistance of the Funds'
investment adviser and officers, communications to shareholders of record of the
Funds ("Shareholders"), including the annual report to Shareholders; prepare and
file with the SEC the semi-annual report for the Funds on Form N-SAR and all
required notices pursuant to Rule 24f-2; coordinate the printing and
distribution of prospectuses, supplements, proxy materials and reports to
Shareholders; and coordinate the solicitation and tabulation of proxies in
connection with the annual meeting of Shareholders each year, if one is held;
(e) supervise the Trust's transfer agent with respect to the payment of
dividends and other distributions to Shareholders;
(f) calculate performance data of the Funds for dissemination to up to
six (6) information services covering the investment company industry;
(g) coordinate and supervise the preparation and filing of the Trust's
tax returns;
(h) assist with the layout and printing of prospectuses and assist with
and coordinate layout and printing of the Funds' semi-annual and annual reports
to Shareholders;
(i) assist with the design, development, and operation of the Funds,
including new classes, investment objectives, policies and structure;
(j) make available appropriate individuals to serve as officers of the
Trust, upon designation as such by the Board;
(k) advise the Trust and the Board on matters concerning the Trust, the
Funds and their affairs;
(l) obtain, maintain and file fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust at the expense of
the Trust and Funds in accordance with the requirements of Rules 17g-1 and
17d-1(7) under the Investment Company Act of 1940, as amended (the "1940 Act"),
to the extent such bonds and policies are approved by the Board;
(m) monitor and advise the Trust and its Funds on their regulated
investment company status under the Internal Revenue Code of 1986, as amended;
(n) perform required administrative services and functions of the Trust
and each Fund to the extent administrative services and functions are not
provided to the Trust or such Fund pursuant to the Trust's or such Fund's
investment advisory agreement, distribution agreement, custodian agreement,
transfer agent agreement or fund accounting agreement;
(o) maintain corporate records on behalf of the Trust, including, but
not limited to, minute books, Declaration of Trust and By-Laws;
(p) furnish advice and recommendations with respect to other aspects of
the business and affairs of the Funds as the Trust and BISYS shall determine
desirable;
(q) assist in developing compliance procedures for each Fund, and
provide compliance monitoring services incorporating certain of those
procedures, which will include, among other matters, compliance with each Fund's
investment objective, defined investment policies, restrictions, tax
diversification, distribution and income requirements as are determinable based
upon the Fund's accounting records;
(r) provide assistance and guidance to the Trust with respect to
matters governed by or related to regulatory requirements and developments
including: monitoring regulatory and legislative developments which may effect
the Trust, and assisting in strategic planning in response thereto; assisting
the Trust in responding to and providing documents for routine regulatory
examinations or investigations; and working closely with counsel to the Trust in
response to such routine or non-routine regulatory matter; and
(s) assist the Trust in preparing for Board meetings by (i)
coordinating Board book preparation, production and distribution, (ii) preparing
the relevant sections of the Board materials pertaining to the responsibilities
of BISYS, (iii) assisting and coordinating special materials related to annual
contract approvals and approval of rule 12b-1 plans and related matters, and
(iv) performing such other Board meeting functions as agreed by the parties.
BISYS shall perform such other services for the Trust that are mutually
agreed upon by the parties from time to time. Such services may include
performing internal audit examinations; mailing the annual reports of the Funds;
preparing an annual list of Shareholders; and mailing notices of Shareholders'
meetings, proxies and proxy statements, for all of which the Trust will pay such
fees as may be mutually agreed upon, including BISYS's out-of-pocket expenses.
3. Allocation of Charges and Expenses
(a) The Administrator. BISYS shall furnish at its own expense the
executive, supervisory and clerical personnel necessary to perform its
obligations under this Agreement. BISYS shall also provide the items which it is
obligated to provide under this Agreement, and shall pay all compensation, if
any, of officers of the Trust and Trustees of the Trust who are affiliated
persons of BISYS or any affiliated corporation of BISYS; provided, however, that
unless otherwise specifically provided, BISYS shall not be obligated to pay the
compensation of any employee of the Trust retained by the Board to perform
services on behalf of the Trust.
(b) The Trust. The Trust assumes and shall pay or cause to be paid all
other expenses of the Trust not otherwise allocated herein, including, without
limitation, organization costs, taxes, expenses for legal and auditing services,
the expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing Shareholders, all expenses incurred in connection with
issuing and redeeming Shares, the costs of custodial services, the cost of
initial and ongoing registration of the Shares under Federal and state
securities laws, fees and out-of-pocket expenses of Trustees who are not
affiliated persons of BISYS or any affiliated corporation of BISYS (fees for
other "interested Trustees" may be paid by parties other than the Trust),
insurance, interest, brokerage costs, litigation and other extraordinary or
nonrecurring expenses, and all fees and charges of investment advisers.
4. Compensation of the Administrator
(a) Administration Fee. For the services to be rendered, the facilities
furnished and the expenses assumed by BISYS pursuant to this Agreement, the
Trust shall pay monthly to BISYS compensation at an annual rate as specified in
the Omnimbus Fee Agreement between the Trust and BISYS dated as of April 1,
2003.
The Trust shall also reimburse BISYS for all of its reasonable
out-of-pocket expenses, including, but not limited to, travel and lodging
expenses incurred by officers
and employees of BISYS in connection with attendance at (i) Board meetings and
(ii) any other meetings for which such attendance is requested or agreed upon by
the parties.
If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, BISYS's compensation for
that part of the month in which this Agreement is in effect shall be prorated in
a manner consistent with the calculation of the fees as set forth above. Payment
of BISYS's compensation for the preceding month shall be made promptly.
(b) Survival of Compensation Rights. All rights of compensation under
this Agreement for services performed as of the termination date shall survive
the termination of this Agreement.
5. Standard of Care; Uncontrollable Events; Limitation of Liability
BISYS shall use reasonable professional diligence to ensure the
accuracy of all services performed under this Agreement, but shall not be liable
to the Trust for any action taken or omitted by BISYS in the absence of bad
faith, willful misfeasance, negligence or reckless disregard by it of its
obligations and duties. The duties of BISYS shall be confined to those expressly
set forth herein, and no implied duties are assumed by or may be asserted
against BISYS hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Trust's reasonable request, BISYS shall provide supplemental information
concerning the aspects of its disaster recovery and business continuity plan
that are relevant to the services provided hereunder. Notwithstanding the
foregoing or any other provision of this Agreement, BISYS assumes no
responsibility hereunder, and shall not be liable for, any damage, loss of data,
delay or any other loss whatsoever caused by events beyond its reasonable
control. Events beyond BISYS' reasonable control include, without limitation,
force majeure events. Force majeure events include natural disasters, actions or
decrees of governmental bodies, and communication lines failures that are not
the fault of either party. In the event of force majeure, computer or other
equipment failures or other events beyond its reasonable control, BISYS shall
follow applicable procedures in its disaster recovery and business continuity
plan and use all commercially reasonable efforts to minimize any service
interruption.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES
WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6. Activities of the Administrator
The services of BISYS rendered to the Trust are not to be deemed to be
exclusive. BISYS is free to render such services to others and to have other
businesses and interests. It is understood that Trustees, officers, employees
and Shareholders of the Trust are or may be or become interested in BISYS, as
officers, employees or otherwise and that partners, officers and employees of
BISYS and its counsel are or may be or become similarly interested in the Trust,
and that BISYS may be or become interested in the Trust as a Shareholder or
otherwise.
7. Duration of this Agreement
This Agreement shall continue in effect until March 31, 2006 (the
"Initial Term"). Thereafter, unless otherwise terminated as provided herein,
this Agreement shall be renewed automatically for successive one year periods
("Rollover Periods"). This Agreement may be terminated only (i) by provision of
a notice of non-renewal in the manner set forth below, (ii) by mutual agreement
of the parties or (iii) for "cause," as defined below, upon the provision of
sixty (60) days advance written notice by the party alleging cause. Written
notice of non-renewal must be provided at least ninety (90) days prior to the
end of the Initial Term or any Rollover Period, as the case may be.
For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty (30) days
following written notice of such breach from the non-breaching party; (b) a
final, unappealable judicial, regulatory or administrative ruling or order in
which the party to be terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; or (c) financial difficulties on the
part of the party to be terminated which are evidenced by the authorization or
commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the rights of
creditors. BISYS shall not terminate this Agreement pursuant to clause (a) above
based solely upon the Trust's failure to pay an amount to BISYS which is the
subject of a good faith dispute, if (i) the Trust is attempting in good faith to
resolve such dispute with as much expediency as may be possible under the
circumstances, and (ii) the Trust continues to perform its obligations hereunder
in all other material respects (including paying all fees and expenses not
subject to reasonable dispute hereunder).
Notwithstanding the foregoing, following any such termination, in the
event that BISYS in fact continues to perform any one or more of the services
contemplated by this Agreement with the consent of the Trust, the provisions of
this Agreement, including without limitation the provisions dealing with
indemnification, shall continue in full force and effect. Fees and out-of-pocket
expenses incurred by BISYS but unpaid by the Trust upon such termination shall
be immediately due and payable upon and notwithstanding such termination. BISYS
shall be entitled to collect from the Trust, in addition to the fees and
disbursements provided by Article 4 hereof, the amount of all of BISYS' cash
disbursements in connection with BISYS' activities in effecting such
termination, including without limitation, the delivery to the Trust and/or its
distributor or investment adviser and/or other parties of the Trust's property,
records, instruments and documents.
If, for any reason other than (i) non-renewal, (ii) mutual agreement of
the parties or (iii) "cause" for termination of BISYS hereunder, BISYS' services
are terminated hereunder, BISYS is replaced as administrator, or if a third
party is added to perform all or a part of the services provided by BISYS under
this Agreement (excluding any Sub-Administrator appointed as provided in Article
8 hereof), then the Trust shall make a one-time cash payment, in consideration
of the fee structure and services to be provided under this Agreement, and not
as a penalty, to BISYS equal to the balance that would be due BISYS for its
services hereunder during (x) the next [twelve (12)] months or (y) if less than
[twelve (12)], the number of months remaining in the then-current term of this
Agreement, assuming for purposes of the calculation of the one-time payment that
the fees that would be earned by BISYS for each month shall be based upon the
average net asset values of the Trust and fees payable to BISYS monthly during
the twelve (12) months prior to the date that services terminate, BISYS is
replaced or a third party is added.
In the event the Trust or any Fund is merged into another legal entity
in part or in whole pursuant to any form of business reorganization or is
liquidated in part or in whole prior to the expiration of the then-current term
of this Agreement, the parties acknowledge and agree that the liquidated damages
provision set forth above shall be applicable in those instances in which BISYS
is not retained to provide administration services consistent with this
Agreement, including the level of assets subject to such services. The one-time
cash payment referenced above shall be due and payable on the day prior to the
first day in which services are terminated, BISYS is replaced or a third party
is added.
The parties further acknowledge and agree that, in the event services
are terminated, BISYS is replaced, or a third party is added, as set forth
above, (i) a determination of actual damages incurred by BISYS would be
extremely difficult, and (ii) the liquidated damages provision contained herein
is intended to adequately compensate BISYS for damages incurred and is not
intended to constitute any form of penalty.
8. Assignment
This Agreement shall not be assignable by either party without the
written consent of the other party; provided, however, that BISYS may, at its
expense and with the advance approval of the Board, subcontract with any entity
or person concerning the provision of administration services contemplated
hereunder (a "Sub-Administrator"). BISYS shall not, however, be relieved of any
of its obligations under this Agreement by the appointment of any
Sub-Administrator or other subcontractor and BISYS shall be responsible, to the
extent provided in Article 5 hereof, for all acts of any Sub-Administrator as if
such acts were its own. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
9. Indemnification
The Trust agrees to indemnify and hold harmless BISYS, its employees,
agents, directors, officers and nominees from and against any and all claims,
demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses
(including reasonable investigation expenses) of every nature and character
(collectively, "Losses") arising out of or in any way relating to BISYS' actions
taken or omissions with respect to the performance of services under this
Agreement or based, if applicable, upon reasonable reliance on information,
records, instructions or requests given or made to BISYS by the Trust, the
investment adviser, fund accountant, transfer agent or custodian thereof;
provided that this indemnification shall not apply to actions or omissions of
BISYS in cases of its own bad faith, willful misfeasance, negligence or reckless
disregard by it of its obligations and duties.
BISYS shall indemnify, defend, and hold the Trust harmless from and
against any and all Losses resulting directly and proximately from BISYS'
willful misfeasance, bad faith or negligence in the performance of its duties,
or by reason of reckless disregard of its obligations and duties hereunder.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited, provided that any such advanced expenses shall be
reimbursed by the indemnified party if an ultimate determination is made that
indemnification is not merited under the circumstances. If in any case a party
may be asked to indemnify or hold the other party harmless, the indemnifying
party shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnified party
will use all reasonable care to notify the indemnifying party promptly
concerning any situation which presents or appears likely to present the
probability of such a claim for indemnification against the indemnifying party,
but failure to do so in good faith shall not affect the rights hereunder except
to the extent the indemnifying party is materially prejudiced thereby. As to any
matter eligible for indemnification, an indemnified party shall act reasonably
and in accordance with good faith business judgment and shall not effect any
settlement or confess judgment without the consent of the indemnifying party,
which consent shall not be unreasonably withheld or delayed.
The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the indemnified
party, whose approval shall not be unreasonably withheld. In the event that the
indemnifying party elects to assume the defense of any suit and retain counsel,
the indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of suit, it
will reimburse the indemnified party for the reasonable fees and expenses of any
counsel retained by the indemnified party. The indemnity and defense provisions
set forth herein shall indefinitely survive the termination of this Agreement.
10. Certain Records
BISYS shall maintain customary records in connection with its duties as
specified in this Agreement. Any records required to be maintained and preserved
pursuant to Rules 31a-1 and 31a-2 under the 1940 Act which are prepared or
maintained by BISYS on behalf of the Trust shall be prepared and maintained at
the expense of BISYS, but shall be the property of the Trust and will be
surrendered promptly to the Trust on request, and made available for inspection
by the Trust or by the Securities and Exchange Commission (the "Commission") at
reasonable times.
BISYS may at its option at any time, and shall promptly upon the
Trust's demand, turn over to the Trust and cease to retain BISYS' files, records
and documents created and maintained by BISYS pursuant to this Agreement which
are no longer needed by BISYS in the performance of its services or for its
legal protection. If not so turned over to the Trust, such documents and records
shall be retained by BISYS for six years from the year of creation. At the end
of such six-year period, such records and documents shall be turned over to the
Trust unless the Trust authorizes in writing the destruction of such records and
documents.
In case of any request or demand for the inspection of such records by
another party, BISYS shall notify the Trust and follow the Trust's instructions
as to permitting or refusing such inspection; provided that BISYS may exhibit
such records in any case where (i) disclosure is required by law, (ii) BISYS is
advised by counsel that it may incur liability for failure to make a disclosure,
(iii) BISYS is requested to divulge such information by duly-constituted
authorities or court process, or (iv) BISYS is requested to make a disclosure by
the Trust. BISYS shall provide the Trust with reasonable advance notice of
disclosure pursuant to items (i) - (iii) of the previous sentence, to the extent
reasonably practicable.
11. Insurance
BISYS shall maintain a fidelity bond covering larceny and embezzlement
and an insurance policy with respect to directors and officers errors and
omissions coverage in amounts that are appropriate in light of its duties and
responsibilities hereunder. Upon the request of the Trust, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Trust should its
insurance coverage with respect to professional liability or errors and
omissions coverage be canceled. Such notification shall include the date of
cancellation and the reasons therefore. BISYS shall notify the Trust of any
material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Trust should the total outstanding claims made by BISYS under its insurance
coverage materially impair, or threaten to materially impair, the adequacy of
its coverage.
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12. Legal Advice; Reliance on Prospectus and Instructions
BISYS may apply to the Company at any time for instructions and may
consult with counsel for the Company and with accountants and other experts with
respect to any matter arising in connection with BISYS' duties, and BISYS shall
not be liable nor accountable for any action taken or omitted by it in good
faith in accordance with such instruction or with the opinion of such counsel,
accountants or other experts. BISYS shall notify the Trust at any time BISYS
believes that it is in need of the advice of counsel (other than counsel in the
regular employ of BISYS or any affiliated companies) with regard to BISYS'
responsibilities and duties pursuant to this Agreement. After so notifying the
Trust, BISYS, at its discretion, shall be entitled to seek, receive and act upon
advice of legal counsel of its choosing, such advice to be at the expense of the
Trust unless relating to a matter involving BISYS' willful misfeasance, bad
faith, negligence or reckless disregard of BISYS' responsibilities and duties.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Trust relating to the relevant Funds to the extent that such
services are described therein, as well as the minutes of Board meetings (if
applicable) and other records of the Trust unless BISYS receives written
instructions to the contrary in a timely manner from the Trust.
Also, BISYS shall be protected in acting upon any document which it
reasonably believes to be genuine and to have been signed or presented by the
proper person or persons. The Administrator will not be held to have notice of
any change of authority of any officers, employees or agents of the Trust until
receipt of written notice thereof from the Trust.
13. Notice
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, to Kensington Investment Group, Inc.,
0 Xxxxxx Xxx, Xxxxx 000X, Xxxxxx, Xxxxxxxxxx 00000; Attn: Xx. Xxxx X. Xxxxxx,
President, with a copy to the Trust at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000,
Attn: President; and if to BISYS, to it at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx
00000; Attn: President, or at such other address as such party may from time to
time specify in writing to the other party pursuant to this Section.
14. Governing Law and Matters Relating to the Trust as a Delaware
Statutory Trust.
This Agreement shall be construed in accordance with the laws of the
State of Ohio and the applicable provisions of the 1940 Act. To the extent that
the applicable laws of the State of Ohio, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control. It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents or employees of the Trust personally,
but shall bind only the trust property of the Trust. The execution and delivery
of this Agreement have been authorized by the Trustees, and this Agreement has
been signed and delivered by an authorized officer of the Trust, acting as such,
and neither such authorization by the Trustees nor such execution and delivery
by such officer shall be deemed to have been made by any of them individually or
to impose any liability on them personally, but shall bind only the trust
property of the Trust as provided in the Trust's Declaration of Trust.
15. Representations and Warranties
The Trust represents and warrants to BISYS that this Agreement has been
duly authorized by the Trust and, when executed and delivered by the Trust, will
constitute a legal, valid and binding obligation of the Trust, enforceable
against the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
BISYS represents and warrants that: (a) the various procedures and
systems which BISYS has implemented with regard to safekeeping from loss or
damage attributable to fire, theft or any other cause of the blank checks,
records, and other data of the Trust and BISYS' records, data, equipment,
facilities and other property used in the performance of its obligations
hereunder are adequate and that it will make such changes therein from time to
time as are reasonably required for the secure performance of its obligations
hereunder; and (b) this Agreement has been duly authorized by BISYS and, when
executed and delivered by BISYS, will constitute a legal, valid and binding
obligation of BISYS, enforceable against BISYS in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the right and remedies of creditors and secured
parties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
16. Privacy
Nonpublic personal financial information relating to consumers or
customers of the Trust provided by, or at the direction of the Trust to BISYS,
or collected or retained by BISYS in the course of performing its duties shall
be considered confidential information. BISYS shall not give, sell or in any way
transfer such confidential information to any person or entity, other than
affiliates of BISYS except at the direction of the Trust or as required or
permitted by law. BISYS represents, warrants and agrees that it has in place and
will maintain physical, electronic and procedural safeguards
reasonably designed to protect the security, confidentiality and integrity of,
and to prevent unauthorized access to or use of records and information relating
to consumers or customers of the Trust. The Trust represents to BISYS that it
has adopted a Statement of its privacy policies and practices as required by the
Commission's Regulation S-P and agrees to provide BISYS with a copy of that
statement annually.
17. Miscellaneous
(a) Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties
hereto as to the subject matter covered by this Agreement, and supercedes all
prior negotiations, understandings and agreements bearing upon the subject
matter covered herein.
(c) This Agreement may be executed in counterparts, each of which shall
be an original but all of which, taken together, shall constitute one and the
same agreement.
(d) No amendment to this Agreement shall be valid unless made in
writing and executed by both parties hereto. The parties hereto may amend such
procedures as may be set forth herein by written agreement as may be appropriate
or practical under the circumstances, and BISYS may conclusively assume that any
special procedure which has been approved by an executive officer of the Trust
(other than an officer or employee of BISYS) does not conflict with or violate
any requirements of the Trust's Declaration of Trust, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory body.
(e) The terms "interested person" and "affiliated person," when used in
this Agreement, shall have the respective meanings specified in the 1940 Act and
the rules and regulations thereunder, subject to such exemptions as may be
granted by the Commission.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
THE KENSINGTON FUNDS
By:
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Name:
Title:
BISYS FUND SERVICES OHIO, INC.
By:
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Name:
Title:
