ADMINISTRATION AGREEMENT
AGREEMENT made this 18th day of May, 2007, between Fifth Third Funds
(the "Trust"), having its principal place of business at 00 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxx 00000 and Fifth Third Asset Management, Inc.
("Administrator"), having its principal place of business at 00 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxx 00000.
WHEREAS, the Trust is an open-end management investment company,
organized as a Massachusetts business trust and registered with the Securities
and Exchange Commission (the "Commission") under the Investment Company Act of
1940 (the "1940 Act"); and
WHEREAS, the Trust desires to retain Administrator to furnish
administration services to certain investment portfolios of the Trust and may
retain Administrator to serve in such capacity with respect to additional
investment portfolios of the Trust, all as now or hereafter may be identified in
Schedule A hereto as such Schedule may be amended from time to time
(individually referred to herein as a "Fund" and collectively referred to herein
as the "Funds").
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services as Administrator
Subject to the direction and control of the Board of Trustees of the
Trust, Administrator will assist the officers of the Trust in supervising all
aspects of the operations of the Funds and coordinating the activities of all
other service providers to the Trust. Administrator will maintain office
facilities (which may be in the offices of Administrator or an affiliate);
furnish statistical and research data, clerical and certain bookkeeping services
and stationery and office supplies; prepare and file, as reviewed by the Trust's
counsel, the periodic reports of the Trust to the Commission; compile data for,
assist the Trust or its designee in the preparation of, and file, all the Funds'
federal and state tax returns and required tax filings other than those required
to be made by the Funds' custodian and transfer agent; prepare compliance
filings pursuant to state securities laws with the advice of the Trust's
counsel; prepare, with the assistance of the Trust's counsel, investment adviser
and independent auditor the Trust's Annual and Semi-Annual Reports to
Shareholders and its Registration Statements (on Form N-IA or any replacement
therefor); compile data for, prepare and file timely Notices to the Commission
required pursuant to Rule 24f-2 under the 1940 Act; prepare, as reviewed by the
Trust's counsel, board materials and minutes for each meeting of the Board of
Trustees; assist the Trust's Chief Compliance Officer in implementing a
compliance program for the Trust; and make certain of its employees available to
serve as officers of the Trust, subject to Section 4 of this Agreement and the
approval of the Board of Trustees.
In compliance with the requirements of Rule 31a-3 under the 1940 Act,
Administrator hereby agrees that all records which it maintains for the Trust
are the property of the Trust and further agrees to surrender promptly to the
Trust any of such records upon the Trust's request. Administrator further agrees
to preserve for the periods prescribed by Rule 3la-2 under the 1940 Act the
records required to be maintained by Rule 31a-1 under the 1940 Act.
Administrator may delegate some or all of its responsibilities under
this Agreement and may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder; provided,
however, that Administrator shall not be relieved of any of its obligations
under this Agreement by the appointment of such subcontractor and shall be
responsible,
to the extent provided in Section 4 hereof, for all acts of such
subcontractor as if such acts were its own. Administrator's services shall not
be exclusive to the Trust, and Administrator may perform the same or similar
services for other entities not affiliated with the Trust.
2. Fees; Expenses; Expense Reimbursement
In consideration of services rendered and expenses assumed pursuant to
this Agreement, each of the Funds will pay Administrator on the first business
day of each month, or at such time(s) as Administrator shall request and the
parties hereto shall agree, a fee computed daily and paid as specified below
calculated at the applicable annual rate set forth on Schedule A hereto. The fee
for the period from the day of the month this Agreement is entered into until
the end of that month shall be prorated according to the proportion which 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 termination of this Agreement.
For the purpose of determining fees payable to Administrator, the value
of the net assets of a particular Fund shall be computed in the manner,
described in the Trust's Declaration of Trust or in the Prospectus or Statement
of Additional Information respecting that Fund as from time to time is in effect
for the computation of the value of such net assets.
Administrator will from time to time employ such persons and provide
such facilities and equipment as are reasonably necessary for the Administrator
to perform this Agreement. The compensation of such persons shall be paid by
Administrator, and no obligation may be incurred on behalf of the Trust in such
respect. Other expenses to be incurred in the operation of the Trust will be
borne by the Funds including, but not limited to, taxes, interest, brokerage
fees and commissions, if any; fees of Trustees who are not partners, officers,
directors, shareholders or employees of Administrator or the investment adviser
or distributor for the Funds; Commission fees and state Blue Sky qualification
and renewal fees and expenses; investment advisory fees, custodian fees,
transfer and dividend disbursing agents' fees; fund accounting fees including
pricing of portfolio securities, service organization fees, certain insurance
premiums; outside and, to the extent authorized by the Trust, inside auditing
and legal fees and expenses; costs of maintenance of corporate existence;
typesetting and printing prospectuses for regulatory purposes and for
distribution to current shareholders of the Funds; costs of shareholders' and
Trustees' reports and meetings; dividend expenses on short sales and any
extraordinary expenses; provided, however, that the Funds will not bear directly
or indirectly, the cost of any activity which is primarily intended to result in
the distribution of shares of the Funds, except for such costs incurred in
connection with activities described in the Trust's Distribution Agreement
adopted pursuant to Rule 12b-1 under the 1940 Act.
3. Proprietary and Confidential Information
Administrator agrees on behalf of itself and its partners and employees
to treat confidentially and as proprietary information of the Trust all records
and other information relative to the Trust and prior, present, or potential
shareholders, and not to use such records and information for any purpose other
than performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Trust, which approval shall
not be unreasonably withheld and may not be withheld where Administrator may be
exposed to civil or criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted authorities, or when
so requested by the Trust. During the term of this Agreement, the Administrator
agrees that it will maintain
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and enforce policies reasonably designed to prohibit the Administrator and its
employees from engaging in securities transactions based on knowledge of the
portfolio holdings of any Fund.
4. Limitation of Liability
Administrator shall not be liable for any loss suffered by the Funds in
connection with the matters to which this Agreement relates, except for a loss
resulting from willful misfeasance, bad faith or negligence on its part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. The Trust agrees to indemnify and hold harmless
Administrator, its employees, agents, directors, officers and nominees from and
against any and all claims, demands, actions and suits, whether groundless or
otherwise, and from and against any and all judgments, liabilities, losses,
damages, costs, charges, counsel fees and other expenses of every nature and
character arising out of or in any way relating to Administrator's actions taken
or non-actions 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 Administrator by the Trust, the Board
of Trustees or the investment adviser and on any records provided by any fund
accountant (other than Administrator) or custodian thereof; provided, that this
indemnification shall not apply to actions or omissions of Administrator in
cases of its own bad faith, willful misfeasance, negligence or from reckless
disregard by it of its obligations and duties; and further provided, that prior
to confessing any claim against it which may be the subject of this
indemnification, Administrator shall give the Trust written notice of and
reasonable opportunity to defend against said claim in its own name or in the
name of Administrator. Administrator agrees to indemnify and hold harmless the
Trust, its agents, Trustees, officers and nominees from and against any and all
actions, suits, demands and claims, whether groundless or otherwise, and from
and against any and all judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and character arising
out of or in any way relating to Administrator's bad faith, willful misfeasance,
negligence, or reckless disregard by it of its obligations and duties with
respect to the performance of services under this Agreement. Any person, even
though also a partner, employee, or agent of Administrator, who may be or become
an officer or Trustee of the Trust shall be deemed, when rendering services to
the Trust in the capacity of an officer or Trustee, to be acting as an officer
or Trustee, as the case may be, and not as a partner, employee, or agent of
Administrator or one under the control or direction of Administrator even though
paid by it.
5. Disaster Recovery
Administrator shall implement and maintain, at no additional expense to
the Trust, disaster recovery and business continuity procedures that are
reasonably designed to recover data processing systems, data communications
facilities, information, data and other business-related functions of the
Administrator in a manner and time frame consistent with legal, regulatory and
business requirements applicable to the Administrator in its provision of
services hereunder. In the event of any disaster which causes a business
interruption, the Administrator shall, at no additional expense to the Trust,
take reasonable steps to minimize service interruptions.
6. Rule 38a-1
The Administrator will maintain written policies and procedures
reasonably designed to
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prevent violations of the federal securities laws pursuant to Rule 38a-1 ("Rule
38a-1") under the 1940 Act. The Administrator will (a) on a quarterly basis,
provide to the Trust a certification and (b) provide periodic reports and
reasonable documentation for delivery to the Trust's Chief Compliance Officer,
each in connection with Rule 38a-1.
7. Term
This Agreement shall become effective as of the date first written
above or, if a particular Fund is not in existence on that date, on the date
such Fund commences operation (the "Effective Date").
This Agreement shall continue in effect with respect to a Fund, unless
earlier terminated by either party hereto as provided hereunder, until December
31, 2008 (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 without
penalty (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 60 days advance written notice by the party
alleging cause. Written notice of non-renewal must be provided at least 60 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; (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; (d) any failure on the part of the Trust to pay an amount that is due
and payable to the Administrator or any of its affiliates under this Agreement
or any other agreement to which the Trust is a party within 60 days following
the due date.
After such termination for so long as the Administrator, with the
written consent of the Trust, in fact continues to perform any one or more of
the services contemplated by this Agreement or any schedule or exhibit hereto,
the provisions of this Agreement, including without limitation the provision
dealing with indemnification, shall continue in full force and effect.
Compensation due the Administrator and unpaid by the Trust upon such termination
shall be immediately due and payable upon and notwithstanding such termination.
With the approval of the Trust (which approval shall not be unreasonably
withheld), the Administrator shall be entitled to collect from the Trust, in
addition to the compensation described under Section 2 hereof, the amount of all
of the Administrator's reasonable cash disbursements for services in connection
with the Administrator's activities in effecting such termination, including
without limitation, the delivery to the Trust and/or their respective designees
of the Trust's property, records, instruments and documents.
8. Privacy of Customer Information
Nonpublic personal financial information relating to consumers or
customers of the Trust
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provided by or at the direction of the Trust to Administrator, or collected or
retained by Administrator to perform duties under this Agreement shall be
considered confidential information. Administrator shall not give, sell or in
any way transfer such confidential information to any person or entity, other
than affiliates of Administrator except at the direction of the Trust or as
required or permitted by law. Administrator shall 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 and customers of the Trust.
9. Governing Law and Matters Relating to the Trust as a
Massachusetts Business Trust
This Agreement shall be governed by the laws of the State of Ohio. The
names "Fifth Third Funds" and "Trustees of Fifth Third Funds" refer respectively
to the Trust created and the Trustees, as trustees but not individually or
personally, acting from time to time under the Declaration of Trust dated as of
September 15, 1988, to which reference is hereby made and a copy of which is on
file at the office of the Secretary of the State of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of "Fifth Third Funds"
entered into in the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such capacities and
are not binding upon any of the Trustees, shareholders or representatives of the
Trust personally, but bind only the assets of the Trust, and all persons dealing
with any series of shares of the Trust must look solely to the assets of the
Trust belonging to such series for the enforcement of any claims against the
Trust.
10. Notices
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 FTAM, to it at 00 Xxxxxxxx Xxxxxx Xxxxx, XX
0000XX, Xxxxxxxxxx, Xxxx 00000 Attn: Xxxxxxx Xxxx; and if to the Trust, to it at
00 Xxxxxxxx Xxxxxx Xxxxx, XX 0000XX, Xxxxxxxxxx, 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.
11. Assignability
This Agreement shall not be assigned by either party hereto without the
prior consent in writing of the other party, except that each party may assign
this Agreement to a successor of all or a substantial portion of its business,
or to a party controlling, controlled by or under common control with said
party.
12. Amendments
Any amendment to this Agreement will only be valid if in writing and
signed by the parties to be bound by such amendment(s). If any provision of this
Agreement is deemed to be in violation of law or is unenforceable, the remainder
of this Agreement with such provision omitted will remain in full force and
effect.
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13. Miscellaneous
This Agreement supersedes all proposals, prior communications,
advertising, representations, warranties and promises, whether oral or written,
relating to the subject matter of this Agreement. This Agreement constitutes the
entire agreement between the parties as to the subject matter hereof and
supersedes any and all agreements, representations and warranties, written or
oral, regarding such subject matter made prior to the time at which this
Agreement has been executed and delivered, with the exception of any
confidentiality agreements that may have been entered into by the parties prior
to the execution of this Agreement. Further, each party agrees to abide by all
applicable federal and state laws and regulations in connection with the
performance of its obligations under this Agreement. If any provision of this
Agreement is deemed to be in violation of law or unenforceable, the remainder of
this Agreement with such provision omitted shall remain in full force and
effect.
The division of this Agreement into sections, clauses, paragraphs or
subdivisions and the insertion of headings are for convenience only and shall
not affect the construction on interpretation. The failure of any party to
require performance by another party of any provision of this Agreement shall in
no way affect the full right to require such performance at any time thereafter.
Both parties agree that this Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
written above.
FIFTH THIRD FUNDS FIFTH THIRD ASSET MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ X. X. Xxxxx
------------------------ ---------------
Name: Xxxxxxx X. Xxxxxxxxx Name: X. X. Xxxxx
Title: Vice President Title: President
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SCHEDULE A
TO THE
ADMINISTRATION AGREEMENT
BETWEEN FIFTH THIRD FUNDS
AND FIFTH THIRD ASSET MANAGEMENT, INC.
NAME OF FUND:
o Fifth Third Small Cap Growth Fund
o Fifth Third Mid Cap Growth Fund
o Fifth Third Quality Growth Fund
o Fifth Third Large Cap Core Fund
o Fifth Third Equity Index Fund
o Fifth Third Balanced Fund
o Fifth Third Micro Cap Value Fund
o Fifth Third Small Cap Value Fund
o Fifth Third Multi Cap Value Fund
o Fifth Third Disciplined Large Cap Value Fund
o Fifth Third LifeModel Aggressive Fund
o Fifth Third LifeModel Moderately Aggressive Fund
o Fifth Third LifeModel Moderate Fund
o Fifth Third LifeModel Moderately Conservative Fund
o Fifth Third LifeModel Conservative Fund
o Fifth Third Strategic Income Fund
o Fifth Third Dividend Growth Fund
o Fifth Third Technology Fund
o Fifth Third International Equity Fund
o Fifth Third High Yield Bond Fund
o Fifth Third Bond Fund
o Fifth Third Intermediate Bond Fund
o Fifth Third Short Term Bond Fund
o Fifth Third U.S. Government Bond Fund
o Fifth Third Municipal Bond Fund
o Fifth Third Intermediate Municipal Bond Fund
o Fifth Third Ohio Municipal Bond Fund
o Fifth Third Michigan Municipal Bond Fund
o Fifth Third Prime Money Market Fund
o Fifth Third Government Money Market Fund
o Fifth Third Michigan Municipal Money Market Fund
o Fifth Third Municipal Money Market Fund
o Fifth Third Institutional Money Market Fund
o Fifth Third Institutional Government Money Market Fund
o Fifth Third U.S. Treasury Money Market Fund
o Fifth Third Ohio Tax Exempt Money Market Fund
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COMPENSATION*
Annual Rate of:
Twenty one-hundredths of one percent (0.20%) of all Funds' average daily net
assets up to $1 billion
Eighteen one-hundredths of one percent (0.18%) of all Funds' average daily net
assets in excess of $1 billion up to $2 billion
Seventeen one-hundredths of one percent (0.17%) of all Funds' average daily net
assets in excess of $2 billion
*All fees are computed daily and paid monthly.
The rate of compensation includes up to four classes of shares per
portfolio. An additional minimum fee of $10,000 per portfolio for each
additional class will be assessed. For any Fund that commences
operations after September 18, 2002 shall be subject to an annual
minimum fee of $20,000.
FIFTH THIRD FUNDS FIFTH THIRD ASSET MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ X. X. Xxxxx
------------------------ ---------------
Name: Xxxxxxx X. Xxxxxxxxx Name: X. X. Xxxxx
Title: Vice President Title: President
Date: May 18, 2007 Date: May 18, 2007
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