EXHIBIT 23(d)(2)
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of July 20, 1999, by and between
XXXXXXXXXXX.XXX FUNDS, a Massachusetts business trust (the "Company"), and BISYS
FUND SERVICES OHIO, INC., an Ohio corporation (the "Administrator").
WHEREAS, the Company is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of several series of shares of beneficial interest ("Shares");
and
WHEREAS, the Company desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
each currently existing series of the Company, and such additional series as the
Company and the Administrator may agree on ("Portfolios") and as listed on
Schedule A attached hereto and made a part of this Agreement, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Company and the Administrator hereby agree as
follows:
ARTICLE 1. RETENTION OF THE ADMINISTRATOR. The Company hereby retains
the Administrator to act as the administrator of the Portfolios and to furnish
the Portfolios with the management and administrative services as set forth in
Article 2 below. The Administrator hereby accepts such employment to perform the
duties set forth below.
The Administrator 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 Company in any way and shall
not be deemed an agent of the Company.
ARTICLE 2. ADMINISTRATIVE SERVICES. The Administrator shall perform or
supervise the performance by others of other administrative services in
connection with the operations of the Portfolios, and, on behalf of the Company,
will 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 Portfolios' operations. The
Administrator shall provide the Board members of the Company with such reports
regarding investment performance as they may reasonably request but shall have
no responsibility for supervising the performance by any investment adviser or
sub-adviser of its responsibilities.
The Administrator shall provide the Company with regulatory reporting,
and, at the Company's request, all necessary office space, equipment, personnel,
compensation and facilities (including facilities for Shareholders' and Board
meetings) for handling the affairs of the Portfolios and such other services as
the Administrator shall, from time to time, determine to be necessary to perform
its obligations under this Agreement. In addition, at the request of the Board,
the Administrator shall make reports to the Company's Board members concerning
the performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator
shall:
(a) calculate contractual Company expenses and control all
disbursements for the Company, and as appropriate compute the
Company's yields, total return, expense ratios, portfolio,
turnover rate and, if required, portfolio average dollar-weighted
maturity;
(b) assist Company counsel with the preparation of prospectuses,
statements of additional information, registration statements and
proxy materials;
(c) prepare such reports, applications and documents (including
reports regarding the sale and redemption of Shares as may be
required in order to comply with Federal and state securities
law) as may be necessary or desirable to register the Company's
Shares with state securities authorities, monitor the sale of
Company Shares for compliance with state securities laws, and
file with the appropriate state securities authorities the
registration statements and reports for the Company and the
Company's Shares and all amendments thereto, as may be necessary
or convenient to register and keep effective the Company and the
Company's Shares with state securities authorities to enable the
Company to make a continuous offering of its Shares;
(d) develop and prepare, with the assistance of the Company's
investment adviser, communications to Shareholders, including the
annual report to Shareholders, coordinate the delivery of
prospectuses, notices, proxy statements, proxies and other
reports to Company Shareholders, and supervise and facilitate the
proxy solicitation process for all shareholder meetings,
including the tabulation of shareholder votes;
(e) administer contracts on behalf of the Company with, among
others, the Company's investment adviser, distributor, custodian,
transfer agent and fund accountant;
(f) supervise the Company's transfer agent with respect to the
payment of dividends and other distributions to Shareholders;
(g) calculate performance data of the Portfolios for
dissemination to information services covering the investment
company industry;
(h) coordinate and supervise the preparation and filing of the
Company's tax returns;
(i) examine and review the operations and performance of the
various organizations providing services to the Company or any
Portfolio of the Company, including, without limitation, the
Company's investment adviser, distributor, custodian, fund
accountant, transfer agent, outside legal counsel and independent
public accountants, and at the request of the Board of Directors,
report to the Board on the performance of organizations;
(j) assist with the design, development, and operation of the
Portfolios, including new classes, investment objectives,
policies and structure;
(k) provide individuals reasonably acceptable to the Company's
Board to serve as officers of the Company, who will be
responsible for the management of certain of the Company's
affairs as determined by the Company's Board;
(l) advise the Company and its Board on matters concerning the
Company and its affairs;
(m) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Company
in accordance with the requirements of Rules 17g-1 and 17d-1(7)
under the 1940 Act as such bonds and policies are approved by the
Company's Board;
(n) monitor and advise the Company and its Portfolios on their
registered investment company status under the Internal Revenue
Code of 1986, as amended;
(o) perform all administrative services and functions of the
Company and each Portfolio to the extent administrative services
and functions are not provided to the Company or such Portfolio
pursuant to the Company's or such Portfolio's investment advisory
agreement, distribution agreement, custodian agreement, transfer
agent agreement and fund accounting agreement;
(p) furnish advice and recommendations with respect to other
aspects of the business and affairs of the Portfolios as the
Company and the Administrator shall determine desirable; and
(q) prepare and file with the SEC the semi-annual report for the
Company on Form N-SAR and all required notices pursuant to Rule
24f-2.
The Administrator shall perform such other services for the Company
that are mutually agreed upon by the parties from time to time. Such services
may include performing internal audit examinations; distributing the annual
reports of the Portfolios; preparing an annual list of Shareholders; and
distributing notices of Shareholders' meetings, proxies and proxy statements,
for all of which the Company will pay the Administrator's out-of-pocket
expenses, if any.
ARTICLE 3. ALLOCATION OF CHARGES AND EXPENSES.
(A) THE ADMINISTRATOR. The Administrator shall furnish at its own
expense the executive, supervisory and clerical personnel necessary to perform
its obligations under this Agreement. The Administrator 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 Company as well as all Board members of
the Company who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Company retained by the Board of the Company
to perform services on behalf of the Company.
(B) THE COMPANY. The Company assumes and shall pay or cause to be paid
all other expenses of the Company not otherwise allocated herein, including,
without limitation, organization costs, taxes, expenses for legal and auditing
services, the expenses of preparing and distributing 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 Board members who are not affiliated persons of
the Administrator or the investment adviser to the Company or any affiliated
corporation of the Administrator or the Company's investment adviser, insurance,
interest, brokerage costs, litigation and other extraordinary or nonrecurring
expenses, and all fees and charges of investment advisers to the Company.
ARTICLE 4. COMPENSATION OF THE ADMINISTRATOR.
(A) ADMINISTRATION FEE. For the services to be rendered, the
facilities furnished and the expenses assumed by the Administrator pursuant to
this Agreement, the Company shall pay to the Administrator compensation at an
annual rate specified in the Omnibus Fee Agreement attached hereto. Such
compensation shall also be in consideration for the fund accounting services and
transfer agency services provided by the Administrator pursuant to the Fund
Accounting Agreement and Transfer Agency Agreement, respectively, each dated
July 20, 1999, between the Administrator and the Company. Such compensation
shall be calculated and accrued daily, and paid to the Administrator monthly.
The Company shall also reimburse the Administrator for its reasonable
out-of-pocket expenses, including the travel and lodging expenses incurred by
officers and employees of the Administrator in connection with attendance at
Board meetings.
If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, the Administrator'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 the Administrator'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.
ARTICLE 5. LIMITATION OF LIABILITY OF THE ADMINISTRATOR. The duties of
the Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Administrator
hereunder. The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any act or omission in carrying
out its duties hereunder, except a loss resulting from willful misfeasance, bad
faith or negligence in the performance of its duties, or by reason of reckless
disregard of its obligations and duties hereunder, except as may otherwise be
provided under provisions of applicable law which cannot be waived or modified
hereby. (As used in this Article 5, the term "Administrator" shall include
directors, officers, employees and other agents of the Administrator as well as
the Administrator itself.)
So long as the Administrator acts in good faith and with due diligence
and without negligence, the Company assumes full responsibility and shall
indemnify the Administrator and hold it harmless from and against any and all
actions, suits and claims, whether groundless or otherwise, and from and against
any and all losses, damages, costs, charges, reasonable counsel fees and
disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) arising directly or indirectly out of the
Administrator's actions taken or nonactions with respect to the performance of
services hereunder. The indemnity and defense provisions set forth herein shall
indefinitely survive the termination of this Agreement.
The 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. In order
that the indemnification provision contained herein shall apply, however, it is
understood that if in any case the Company may be asked to indemnify or hold the
Administrator harmless, the Company shall be fully and promptly advised of all
pertinent facts concerning the situation in question, and it is further
understood that the Administrator will use all reasonable care to identify and
notify the Company promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification against
the Company, but failure to do so in good faith shall not affect the rights
hereunder.
The Company 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 Company elects to assume the defense
of any such claim, the defense shall be conducted by counsel chosen by the
Company and satisfactory to the Administrator, whose approval shall not be
unreasonably withheld. In the event that the Company elects to assume the
defense of any suit and retain counsel, the Administrator shall bear the fees
and expenses of any additional counsel retained by it. If the Company does not
elect to assume the defense of a suit, it will reimburse the Administrator for
the reasonable fees and expenses of any counsel retained by the Administrator.
The Administrator may apply to the Company at any time for
instructions and may consult counsel for the Company or its own counsel and with
accountants and other experts with respect to any matter arising in connection
with the Administrator's duties, and the Administrator shall not be liable or
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.
Also, the Administrator 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
Company until receipt of written notice thereof from the Company.
ARTICLE 6. ACTIVITIES OF THE ADMINISTRATOR. The services of the
Administrator rendered to the Company are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that Board members, officers,
employees and Shareholders of the Company are or may be or become interested in
the Administrator, as officers, employees or otherwise and that directors,
officers and employees of the Administrator and its counsel are or may be or
become similarly interested in the Company, and that the Administrator may be or
become interested in the Company as a Shareholder or otherwise.
ARTICLE 7. DURATION OF THIS AGREEMENT. The Term of this Agreement
shall be as specified in Schedule A hereto.
ARTICLE 8. ASSIGNMENT. This Agreement shall not be assignable by
either party without the written consent of the other party; provided, however,
that the Administrator may, at its expense, subcontract with any entity or
person concerning the provision of the services contemplated hereunder. The
Administrator shall not, however, be relieved of any of its obligations under
this Agreement by the appointment of such subcontractor and provided further,
that the Administrator shall be responsible, to the extent provided in Article 5
hereof, for all acts of such subcontractor 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.
ARTICLE 9. AMENDMENTS. This Agreement may be amended by the parties
hereto only if such amendment is specifically approved (i) by the vote of a
majority of the Board members of the Company, and (ii) by the vote of a majority
of the Board members of the Company who are not parties to this Agreement or
interested persons of any such party, cast in person at a Board meeting called
for the purpose of voting on such approval.
For special cases, the parties hereto may amend such procedures set
forth herein as may be appropriate or practical under the circumstances, and the
Administrator may conclusively assume that any special procedure which has been
approved by the Company does not conflict with or violate any requirements of
its Agreement and Declaration of Trust or then current prospectuses, or any
rule, regulation or requirement of any regulatory body.
ARTICLE 10. CERTAIN RECORDS. The Administrator 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 the Administrator
on behalf of the Company shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Company and will be made
available to or surrendered promptly to the Company on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Company and follow the
Company's instructions as to permitting or refusing such inspection; provided
that the Administrator may exhibit such records to any person in any case where
it is advised by its counsel that it may be held liable for failure to do so,
unless (in cases involving potential exposure only to civil liability) the
Company has agreed to indemnify the Administrator against such liability.
ARTICLE 11. DEFINITIONS OF CERTAIN TERMS. 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 Securities and
Exchange Commission.
ARTICLE 12. NOTICE. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the following address: 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000,
or at such other address as such party may from time to time specify in writing
to the other party pursuant to this Section.
ARTICLE 13. GOVERNING LAW. 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.
ARTICLE 14. MULTIPLE ORIGINALS. This Agreement may be executed in two
or more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
ARTICLE 15. MISCELLANEOUS. This Agreement has been executed on behalf
of the Company by the undersigned officer of the Company in his capacity as an
officer of the Company. The obligations of this Agreement shall only be binding
upon the assets and property of the Company and shall not be binding upon any
Board member, officer or shareholder of the Company individually.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
XXXXXXXXXXX.XXX FUNDS
By: _____________________________
Title: ____________________________
BISYS FUND SERVICES OHIO, INC.
By: ______________________________
Title: ____________________________
SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
BETWEEN XXXXXXXXXXX.XXX FUNDS
AND
BISYS FUND SERVICES OHIO, INC.
Portfolios: This Agreement shall apply to all Portfolios of the Company
either now or hereafter created. The current Portfolios of
the Company are set forth below:
OpenFund
Media Technology Fund
Communications Technology Fund
OpenFund II
Fees: Pursuant to Article 4, in consideration of the services
rendered and expenses assumed pursuant to this Agreement,
the Fund Accounting Agreement and the Transfer Agency
Agreement, each dated July 20, 1999 between the
Administrator and the Company, the Company will pay the
Administrator on the first business day of each month, or at
such time(s) as the Administrator shall request and the
parties hereto shall agree, the fee set forth in the Omnibus
Fee Agreement attached 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 date of termination of
this Agreement.
For purposes of determining the fees payable to the
Administrator, the value of the net assets of a particular
Portfolio shall be computed in the manner described in the
Company's Prospectus or Statement of Additional Information
respecting that Portfolio as from time to time is in effect
for the computation of the value of such net assets in
connection with the determination of the liquidating value
of the shares of such Portfolio.
The parties hereby confirm that the fees payable hereunder
shall be applied to each Portfolio as a whole, and not to
separate classes of shares within the Portfolios.
The fee payable by the Company hereunder shall be allocated
to each Portfolio based upon its pro rata share of the total
fee payable hereunder. Such fee as is attributable to each
Portfolio shall be a separate (and not joint or joint and
several) obligation of each such Portfolio. The
Administrator may agree, from time to time, to waive any
fees payable under this Agreement. Such waiver shall be at
the Administrator's sole discretion.
Term: Pursuant to Article 7, the term of this Agreement shall
commence on July 20, 1999, and shall remain in effect until
July 20, 2004 ("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 nonrenewal
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 nonrenewal 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 Company to collect from the
investment adviser any payment or reimbursement that is due
and payable by the investment adviser to the Company
(including an amount due the Company that directly or
indirectly represents amounts payable to the Administrator
in its capacity as fund administrator to the Company) within
60 days following the due date; or (e) any failure on the
part of its affiliates under any other agreement to which
the Company is a party within 60 days following the due
date. For purposes of this definition of "cause," a material
breach shall include, but not be limited to, any failure on
the part of the Company to pay fees due and payable to the
Administrator pursuant to Article 4 hereunder within 60 days
following the due date.
Notwithstanding the foregoing, after such termination for so
long as the Administrator, with the written consent of the
Company, 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 provisions dealing with
indemnification, shall continue in full force and effect.
Compensation due the Administrator and unpaid by the Company
upon such termination shall be immediately due and payable
upon and notwithstanding such termination. The Administrator
shall be entitled to collect from the Company, in addition
to the compensation described in this Schedule A, the amount
of all of the Administrator's cash disbursements for
services in connection with the Administrator's activities
in effecting such termination, including without limitation,
the delivery to the Company and/or its designees of the
Company's property, records, instruments and documents.
If, for any reason other than nonrenewal, mutual agreement
of the parties or "cause," as defined above, the
Administrator is replaced as fund administrator, or if a
third party is added to perform all or a part of the
services provided by the Administrator under this Agreement
(excluding any sub-administrator appointed by the
Administrator as provided in Article 7 hereof), then the
Company 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 the Administrator equal
to the balance due the Administrator for the remainder of
the then-current term of this Agreement, assuming for
purposes of calculation of the payment that such balance
shall be based upon the average amount of the Company's
assets for the twelve months prior to the date the
Administrator is replaced or a third party is added.
In the event the Company 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 the Administrator is not retained
by the surviving entity to provide administration services
consistent with this Agreement. The one-time cash payment
referenced above shall be due and payable on the day prior
to the first day in which the Administrator is replaced or a
third party is added.
The parties acknowledge and agree that, in the event the
Administrator is replaced, or a third party is added, as set
forth above, (i) a determination of actual damages incurred
by the Administrator would be extremely difficult, and (ii)
the liquidated damages provision contained herein is
intended to adequately compensate the Administrator for
damages incurred and is not intended to constitute any form
of penalty.
OMNIBUS FEE AGREEMENT
THIS AGREEMENT is made as of this 20th day of July, 1999 by and
between XXXXXXXXXXX.XXX FUNDS (the "Trust"), a Massachusetts business trust, and
BISYS FUND SERVICES OHIO, INC. ("BISYS"), an Ohio corporation.
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of several series of shares of beneficial interest;
WHEREAS, the Trust and BISYS have entered into an Administration
Agreement, dated July 20, 1999 concerning the provision of management and
administrative services for the investment portfolios of the Trust (individually
referred to herein as a "Fund" and collectively as the "Funds");
WHEREAS, the Trust and BISYS have entered into a Fund Accounting
Agreement and a Transfer Agency Agreement, each of which is dated July 20, 1999
concerning the provision of fund accounting and transfer agency services,
respectively, for the Funds; and
WHEREAS, the parties desire to set forth the compensation payable by
the Trust under the foregoing agreements in a separate written document.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. The Administration Agreement, Fund Accounting Agreement, and
Transfer Agency Agreement referred to herein shall be referred to collectively
as the "Service Agreements."
2. The Trust shall pay to BISYS on the first business day of each
month, or at such time(s) as BISYS shall request and the parties hereto shall
agree, an annual asset-based fee, computed daily, at the rate of:
13 one-hundredths of one percent (.13%) of each Fund's daily net
asset value up to $500 million.
10 one-hundredths of one percent (.10%) of each Fund's daily net
asset value in excess of $500 million up to $750 million.
8.5 one-hundredths of one percent (.085%) of each Fund's daily
net asset value in excess of $750 million up to $1 billion.
7.5 one-hundreth of one percent (.075%) of each Fund's daily net
asset value in excess of $1 billion.
The above-referenced fee shall be subject to an annual aggregate minimum fee of
$75,000 for the first year, $162,000 for the second year and $187,000 for the
years three, four and five. BISYS shall also be entitled to receive $12.50 per
account payable monthly.
3. The fees set forth above shall be in addition to the payment of
out-of-pocket expenses, as provided for in the Service Agreements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be fully executed as of the day and year first written above.
XXXXXXXXXXX.XXX FUNDS
By:_______________________________
Name:_____________________________
Title:____________________________
BISYS FUND SERVICES OHIO, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
