AMENDED AND RESTATED SUB-ADMINISTRATIVE SERVICES AGREEMENT
AMENDED AND RESTATED SUB-ADMINISTRATIVE SERVICES AGREEMENT ("Agreement")
made as of the 1st day of January, 2001,, by and among PBHG Fund Services, a
Pennsylvania business trust (the "Administrator"), and SEI Investments Mutual
Funds Services , a Delaware business trust (the "Sub-Administrator").
W I T N E S S E T H:
WHEREAS, PBHG Insurance Series Fund, Inc. (the "Company"), a Maryland
corporation, is an open-end management investment company registered as such
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Administrator and the Company have entered into an
Administrative Services Agreement (the "Administrative Services Agreement")
pursuant to which the Administrator will provide administrative services to the
Company and each of its several series (the "Funds"), which are identified in
Schedule A to the Administrative Services Agreement; and
WHEREAS, the Administrator desires to retain the Sub-Administrator to
provide certain administrative services to the Company, each Fund, and the
Administrator in the manner and on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. DUTIES AND RESPONSIBILITIES OF THE SUB-ADMINISTRATOR.
The Sub-Administrator shall assist the Administrator in connection with the
Administrator's duties and responsibilities to the Company specified in the
Administrative Services Agreement. In addition, the Sub-Administrator shall
perform or supervise the performance by others of all administrative services in
connection with the operations of the Funds, other than those administrative
services to be provided by the Administrator pursuant to the Administrative
Services Agreement. The administrative services to be provided by the
Sub-Administrator pursuant to this Agreement shall include general
administrative services, regulatory reporting services, fund accounting
services, and such services as set forth herein. The duties of the
Sub-Administrator shall be confined to those expressly set forth herein and no
implied duties are assumed by or may be asserted against the Sub-Administrator
hereunder. Without limiting the generality of the foregoing, the
Sub-Administrator shall provide the services described below:
1.1. GENERAL ADMINISTRATIVE SERVICES.
1.1.1. OFFICE AND OTHER FACILITIES. Furnish, without cost to the Company or
the Administrator, or provide and pay the cost of, such office facilities,
furnishings, and office equipment as are necessary for the performance of the
Sub-Administrator's duties to the Company under this Agreement.
1.1.2. PERSONNEL. Provide, without additional remuneration from or other
cost to the Company or the Administrator, the services of individuals competent
to perform all of the Sub-Administrator's duties under this Agreement.
1.1.3. BOOKS AND RECORDS. Maintain customary records, on behalf of the
Company, in connection with the performance of the Sub-Administrator's duties
under this Agreement. In connection with this, the Sub-Administrator shall
monitor and oversee the performance of its agents with respect to all financial,
accounting, corporate, and other records required to be maintained and preserved
by the Company or on its behalf so
that such records will be maintained in accordance with the provisions of rules
and regulations of the Securities and Exchange Commission ("SEC") under Section
31(a) of the 1940 Act.
1.1.4. REPORTS TO THE COMPANY. Assist the Administrator in furnishing to or
placing at the disposal of the Company such information, reports, evaluations,
analysis, and opinions relating to its duties as the Company may at any time or
from time to time reasonably request, or as the Administrator may reasonably
deem helpful to the Company. The Sub-Administrator also shall assist the
Administrator in the preparation of all necessary meeting materials for meetings
of the Board of Directors.
1.1.5. AUTOMATED FUND SYSTEMS. Assist in implementing and monitoring the
Company's use of automated systems for: (i) the purchase, sale, redemption and
transfer of Company shares; (ii) the payment of Rule 12b-1 service fees to
broker-dealers and others that provide personal services, distribution support
services, and/or account maintenance services to shareholders; and (iii) the
recording and tracking of such transactions and/or payments. The
Sub-Administrator also shall assist in developing, implementing, and monitoring
the Company's use of automated communications systems with brokers, dealers,
custodians, and other service providers, including without limitation trade
clearance systems.
1.2 FUND ACCOUNTING. The Sub-Administrator shall on a continuing basis
perform the fund accounting services and other functions described below.
1.2.1. FINANCIAL STATEMENTS. Maintain the Company's general ledger,
including expense accruals and payments, and prepare the Company's and each
Fund's annual and semi-annual financial statements. On a monthly basis, with
respect to each Fund, the Sub-Administrator shall prepare and provide to the
Administrator and the Company monthly reports as mutually agreed to by the
parties (in U.S. dollars) which may include the following items: schedule of
investments; statement of assets and liabilities; statement of operations;
statement of changes in net assets; cash statement; and schedule of capital
gains and losses.
1.2.2. OVERSIGHT. Assist in developing, reviewing, maintaining, and
monitoring the effectiveness of Company accounting policies and procedures, in
light of industry standards and the "Audits of Investment Companies" of the
American Institute of Certified Public Accountants and, in this regard, devote
particular attention to areas where accounting standards may change or develop.
In this capacity, the Sub-Administrator shall assist in the resolution of
recommendations made by the Fund's independent auditors to improve internal
controls and shall implement such recommendations as required by the Board.
1.2.3. PORTFOLIO VALUATION AND ACCOUNTING. Conduct, or monitor and oversee,
portfolio valuation procedures, including without limitation procedures for the
calculation of expenses and the control of disbursements of each Fund. The
Sub-Administrator shall calculate, or monitor and oversee the calculation of,
the daily net asset value ("NAV") of each Fund in accordance with the procedures
described in the Company's then-current registration statement and such other
procedures as may be established by the Company's Board of Directors. The
Sub-Administrator, on a daily basis, shall provide by electronic transmission or
other mutually agreed upon means, such NAV information to: (i) the investment
adviser and sub-adviser for each Fund; (ii) the NASD for reporting to newspapers
and other news media; and (iii) all sub-transfer agents that have entered into
agreements with the Company. In connection with this responsibility, the
Sub-Administrator shall oversee the determination of the value of each Fund's
assets, and shall review and monitor pricing methodologies relating to such
valuation, including: (i) oversight of any third-party pricing services used by
them; (ii) establishment and maintenance of appropriate "back up" pricing
service arrangements so that the NAV for each Fund will be provided to each
required party specified above; (iii) assistance in the review and verification
of daily securities price changes in excess of percentages specified by the
Sub-Administrator (and promptly reported to the Administrator); (iv) review for
"stale" prices; (v) assistance in determining the resolution of any NAV
calculation errors and (vi) taking reasonable steps to ensure changes in prices
provided by a third party pricing service or other "back up" pricing service
arrangements and the resulting change in NAV are promptly communicated to (i)
the investment adviser and sub-adviser for each Fund; (ii) the NASD for
reporting to newspapers and other news media; and (iii) all sub-transfer agents
that have entered into agreements with the Company. Notwithstanding the
foregoing, the Sub-Administrator shall bear no responsibility for incorrect
prices provided by a third party pricing service, provided the Sub-Administrator
fulfills its obligation as described above.
The Sub-Administrator shall also prepare Company and/or Fund expense
budgets no less frequently than quarterly and determine the related daily
accruals. In addition, the Sub-Administrator shall: determine the Company's and
each Fund's net income both in terms of U.S. dollars and, if appropriate,
foreign currencies; calculate capital gains and losses and, if appropriate,
foreign exchange gains and losses; control all disbursements from the Company
and authorize such disbursements upon written instructions, which may be
continuing instructions, from the Administrator or such other persons authorized
by the Fund's Board of Directors; calculate various contractual expenses for
budget and accrual purposes; reconcile cash of each Fund with the Company's
custodian; reconcile investment balances of each Fund with the Company's
custodian, adviser and, if applicable, sub-adviser and provide each Fund's
investment adviser or, if applicable, sub-adviser with the beginning cash
balance available for investment purposes in both U.S. dollars and, if
appropriate, foreign currency; and maintain historical tax lots for each
security and foreign currency. The Sub-Administrator shall also for each Fund:
monitor timely income collection and tax reclaims; monitor daily expense
accruals and the related calculation of investment advisory fee waivers and/or
expense reimbursements (if any) and notify the Administrator of any proposed
adjustments thereto; and assist in developing and reviewing daily accounting
reports for the Funds.
1.2.4. PERFORMANCE DATA. Calculate performance data of each Fund for
dissemination to information services approved by the Administrator , including,
as appropriate, each Fund's average annual total return, cumulative total
return, expense ratio, and portfolio turnover rate. In connection with this
function, the Sub-Administrator shall, as reasonably requested by the Company's
Board of Directors, develop fund performance and other databases to facilitate
internal and external reporting and shall monitor the calculation of financial
information.
1.2.5. OPERATIONS. Participate, as reasonably requested, in the development
of policies and procedures, including operational, accounting, reporting, and
monitoring procedures, to effectuate securities and other transactions on behalf
of the Company and the Funds, including, stated objectives as appropriate,
securities lending programs, the establishment and use of lines of credit on
behalf of the Company and/or inter-Fund lending capabilities, and the
establishment and use of inter-Fund securities trading capabilities. In
connection with the foregoing, the Sub-Administrator shall, upon reasonable
request, assist in the preparation of any application for exemptive or no-action
relief, if required.
1.2.6. CASH BALANCES. Participate, as reasonably requested, in the
development of policies and procedures, including operational, accounting,
reporting, and monitoring procedures, regarding the management of the Funds'
cash balances, including procedures regarding the use of "sweep" transactions
and repurchase agreements, the temporary reinvestment of credits to cash
balances, and the processing of dividends and other disbursements to the Funds.
In connection with the foregoing, the Sub-Administrator shall, upon reasonable
request, assist in the preparation of any application for exemptive or no-action
relief, if required. The Sub-Administrator shall also provide the cash
availability throughout each day, as required by each Fund's investment adviser
or, if applicable, sub-adviser.
1.3. OVERSIGHT OF AGENTS AND SERVICE PROVIDERS.
The Sub-Administrator shall on a continuing basis perform the oversight and
other services and functions described below:
1.3.1. IN GENERAL. Assist the Administrator and Company counsel in the
preparation, negotiation, and administration of contracts on behalf of the
Company with third-party service providers, such as the Company's distributor,
custodian, transfer agent, sub-transfer agents, and intermediaries with respect
to mutual fund alliance programs. At the reasonable request of the Company or
the Administrator, the Sub-Administrator shall assist in the preparation of
reports to the Company on the performance and service quality of these service
providers, as more fully described in Section 1.3.2. below. The
Sub-Administrator shall review the performance of each Fund's custodian or
custodians regarding the timely recording of cash receipts and disbursements and
position reconciliation and shall periodically report to the Administrator its
findings in that regard, as mutually agreed to by the parties. The
Sub-Administrator shall have no responsibility for supervising the performance
of the investment adviser or sub-adviser for each Fund.
1.3.2. SERVICE QUALITY STANDARDS. Assist the Administrator in establishing
service quality standards and developing and implementing procedures for
monitoring and benchmarking the performance of third-party service providers,
such as those specified in Section 1.3.1. above, against industry standards.
Upon
reasonable request, the Sub-Administrator shall provide the Administrator and
the Company's Board of Directors with periodic reports concerning the results of
monitoring of the performance and service quality of these service providers.
1.4. OVERSIGHT OF TRANSFER AGENT AND DIVIDEND DISBURSING AGENT.
The Sub-Administrator shall on a continuing basis perform the oversight and
other services and functions described below:
1.4.1. COMPLIANCE WITH SERVICE QUALITY STANDARDS. The Sub-Administrator
shall review and participate in determinations concerning the resolution of "as
of" transactions in accordance with the Company's policies as approved by the
Administrator and the Board of Directors of the Company.
1.4.2. OVERSIGHT OF SHAREHOLDER TRANSACTIONS. Assist the Company, as
requested, in developing and implementing procedures with respect to omnibus
accounts, in order to ensure that such accounts are properly serviced and that
Company expenses are allocated appropriately.
1.4.43. TRANSFER AGENT EXPENSES. Assist the Administrator, as requested, in
reviewing the level and allocation of transfer agent out-of-pocket expenses
charged to the Company with respect to whether particular expenses are
appropriately charged to the Company and appropriately allocated among the
Funds.
1.5. REPORTS, FILINGS, AND COMMUNICATIONS.
The Sub-Administrator on a continuing basis shall perform the reporting and
other services and functions described below:
1.5.1. REPORTS AND FILINGS. Assist in the development, preparation, and
filing of all reports and communications by the Company to Company shareholders
and all reports and filings necessary to maintain the registrations and
qualifications of the Company's shares under federal and state "Blue Sky"
securities laws, including registration statements, prospectuses, statements of
additional information, proxy statements, semi-annual reports for the Company on
Form N-SAR, all sales reports, and all required notices pursuant to Rule 24f-2
of the 1940 Act. The Sub-Administrator also shall assist with and coordinate the
layout and printing of semi-annual and annual reports to shareholders.
1.5.2. STATE BLUE SKY FILINGS. Prepare all reports, applications, and
documents (including reports regarding the sale and redemption of the Company's
shares as may be required in order to comply with state Blue Sky securities
laws) as may be necessary or desirable to: (i) register and maintain the
registration of the Company's shares with state securities authorities; and (ii)
monitor the sale of the Company's shares for compliance with state Blue Sky
securities laws. The Sub-Administrator shall file with the appropriate state
securities authorities all registration statements and reports for the Company
and the Company's shares, and all amendments thereto and other filings as may be
necessary or convenient to register the Company and the Company's shares and
keep such registration effective with state security authorities so as to enable
the Company to make a continuous offering of its shares in all 50 states, the
District of Columbia and applicable territories of the U.S..
1.5.3. SHAREHOLDER COMMUNICATIONS. Coordinate mailing Company notices,
proxy statements, proxies and other reports to Company shareholders, and
supervise and facilitate the solicitation of proxies solicited by the Company
for all shareholder meetings, including tabulation process for shareholder
meetings.
1.5.4. TAX RETURNS. Coordinate and supervise the preparation and filing of
all required tax returns for the Company and monitor the accuracy of all tax
reports sent to shareholders of the Company.
1.6. LEGAL AND AUDIT SERVICES.
The Sub-Administrator on a continuing basis shall perform the services and
functions described below:
1.6.1. INDEPENDENT AUDITS. Assist in the coordination of the Company audit
process and provide, upon request, account analysis, fiscal year summaries, and
other audit-related schedules. In connection with this responsibility, the
Sub-Administrator shall take all actions to assure that necessary information is
made available to the Company's independent auditor for the expression of its
opinion, as such may be required by the Company from time to time. The
Sub-Administrator also shall assist and participate in the resolution of issues
raised in the audit process.
1.6.2. 1940 ACT. The Sub-Administrator shall obtain and keep in effect, at
the Company's expense, 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(d)(7) under the 1940 Act, as such bonds and policies
are approved by the Company's Board of Directors. The Sub-Administrator also
shall develop and maintain fund manager "handbooks" to facilitate compliance by
portfolio managers with respect to investment restrictions. In addition, the
Sub-Administrator shall perform quantitative compliance testing on a trade date
plus one basis to assist the Company's Administrator in monitoring the Company's
compliance with provisions of the 1940 Act and the rules and regulations
thereunder as well as compliance with each Fund's investment objectives,
program, policies and restrictions. In connection with this responsibility, the
Sub-Administrator shall promptly advise the Company and the Administrator as to
any compliance problems or issues detected.
1.6.3. TAX COMPLIANCE. Monitor compliance with the provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), and the rules and
regulations thereunder, applicable to regulated investment companies, including:
portfolio diversification requirements and minimum distribution requirements;
review of expense allocations to individual classes to ensure compliance with
applicable IRS pronouncements regarding preferential dividends; wash sales;
qualifying income; asset diversification; and investments in Passive Foreign
Investment Companies. In connection with this responsibility, the
Sub-Administrator shall monitor and advise the Company and the Funds as to their
status as "regulated investment companies" under the Code.
1.6.4. REGULATORY EXAMINATIONS. Assist in the Company's participation in
regulatory examinations, including examinations by the SEC, the National
Association of Securities Dealers, Inc., and/or state securities regulators. In
connection therewith, the Sub-Administrator, on behalf of the Company, shall
provide such information as the regulator may reasonably request, and shall
assist and participate in the resolution of any issues raised in connection with
such examinations.
1.7. DISASTER RECOVERY. The Sub-Administrator shall employ, monitor and
oversee disaster recovery and related back-up procedures and facilities commonly
utilized by others in the mutual fund industry. In this regard, the
Sub-Administrator shall enter into and maintain in effect with appropriate
parties, at no additional expense to the Company, one or more agreements making
appropriate and reasonable provision for emergency use of electronic data
processing equipment and other equipment and/or facilities necessary for the
performance of its duties and obligations under this Agreement in the event of
emergency conditions or equipment failures.
2. EXPENSES.
2.1. EXPENSES PAID BY THE SUB-ADMINISTRATOR.
2.1.1. IN GENERAL. The Sub-Administrator shall bear all of its expenses in
connection with the performance of its duties under this Agreement, except
documented out-of-pocket expenses.
2.1.2. WAIVER OR ASSUMPTION AND REIMBURSEMENT OF EXPENSES BY THE
SUB-ADMINISTRATOR. The waiver or assumption and reimbursement by the
Sub-Administrator of any expense of the Company that the Sub-Administrator is
not required by this Agreement to waive, assume or reimburse shall not obligate
the Sub-Administrator to waive, assume or reimburse the same or any similar
expense of the Company on any subsequent occasion, unless so required pursuant
to a separate agreement between the Company and the Sub-Administrator.
2.2. EXPENSES PAID BY THE COMPANY. The Company shall bear all expenses of
its organization, operation, and business not specifically waived, assumed, or
agreed to be paid by the Administrator or the Sub-Administrator, as provided in
this Agreement, the Administrative Services Agreement of any other agreement
between the Company and the Administrator or the Sub-Administrator, and as
described in the Company's then-current Prospectuses and Statements of
Additional Information.
3. FEES.
3.1. COMPENSATION RATE. In compensation for the services provided to the
Administrator and the Company, the Administrator agrees to pay the
Sub-Administrator a fee as set forth in Schedule B.
3.2. METHOD OF COMPUTATION. The Sub-Administrator's fee shall accrue on
each calendar day and the sum of the daily fee accruals shall be paid monthly to
the Sub-Administrator by the fifth (5th) business day of the next calendar
month. The daily fee accruals shall be computed by multiplying the fraction of
one (1) over the number of calendar days in the year by the applicable annual
rates described in Schedule B, and multiplying this product by the net assets of
the Funds, as determined in accordance with the current Prospectuses of the
Company, as of the close of business on the last preceding business day on which
the Company was open for business.
3.3. PRORATION OF FEE. If this Agreement becomes effective or terminates
before the end of any month, the fee for the period from the effective date to
the end of such month or from the beginning of such month to the date of
termination, as the case may be, shall be prorated according to the proportion
which such period bears to the full month in which such effectiveness or
termination occurs.
3.4. RESPONSIBILITY FOR PAYMENT. The Sub-Administrator shall not be
entitled to receive any payment for the performance of its services hereunder
from the Company and shall look solely and exclusively to the Administrator for
payment of all fees for such services.
4. SUB-ADMINISTRATOR'S USE OF THE SERVICES OF OTHERS.
The Sub-Administrator may at its own cost employ, retain, or otherwise
avail itself of the services and facilities of other persons or organizations
for the purpose of providing the Sub-Administrator, the Administrator, or the
Company with such information or assistance as the Sub-Administrator may deem
necessary, appropriate, or convenient for the discharge of its duties hereunder
or otherwise helpful to the Administrator.
5. OWNERSHIP AND CONFIDENTIALITY OF RECORDS.
All records required to be maintained and preserved by the Company,
pursuant to rules or regulations of the SEC under Section 31(a) of the 1940 Act
and maintained and preserved by the Sub-Administrator on behalf of the Company,
are the property of the Company and shall be surrendered by the
Sub-Administrator promptly on request by the Company. The Sub-Administrator
shall not disclose or use any record or information obtained pursuant to this
Agreement in any manner whatsoever except as expressly authorized by this
Agreement and applicable law. The Sub-Administrator shall keep confidential any
information obtained in connection with its duties and shall disclose such
information only if the Company has authorized such disclosure or if such
disclosure is expressly required by applicable law or federal or state
regulatory authorities.
6. REPORTS TO THE SUB-ADMINISTRATOR.
The Company and/or the Administrator shall furnish or otherwise make
available to the Sub-Administrator such Prospectuses, Statements of Additional
Information, financial statements, proxy statements, reports, and other
information relating to the business and affairs of the Company as the
Sub-Administrator may, at any time or from time to time, require in order to
discharge its duties under this Agreement.
7. SERVICES TO OTHER CLIENTS.
Nothing herein contained shall limit the freedom of the Sub-Administrator
or any affiliated person of the Sub-Administrator to render similar corporate
administrative services to other investment companies, or to engage in other
business activities.
8. LIMITATION OF LIABILITY OF THE SUB-ADMINISTRATOR AND INDEMNIFICATION BY THE
COMPANY AND THE ADMINISTRATOR.
8.1. LIMITATION OF LIABILITY OF THE SUB-ADMINISTRATOR.
8.1.1. Neither the Sub-Administrator nor any of its directors, officers,
employees, or agents performing services for the Company and the Administrator
at the direction or request of the Sub-Administrator in connection with the
Sub-Administrator's discharge of its duties undertaken or assumed with respect
to this Agreement shall be liable for any act or omission in the course of or in
connection with the Sub-Administrator's services hereunder, including any error
of judgment or mistake of law or for any loss suffered by the Company or the
Administrator in connection with the matters to which this Agreement relates;
provided, that nothing herein contained shall be construed to protect the
Sub-Administrator or any such persons against any liability to the Company or
its shareholders or the Administrator to which the Sub-Administrator or such
persons would otherwise be subject by reason of willful misfeasance, bad faith,
or negligence in the performance of its or their duties on behalf of the Company
or the Administrator, or by reason of reckless disregard of its or their
obligations and duties hereunder. The limitation and liability provisions set
forth herein shall indefinitely survive the termination of this Agreement.
8.1.2. The Sub-Administrator may apply to the Board of Directors of the
Company or to the Administrator at any time for instructions and may consult
counsel for the Company or the Administrator or the Sub-Administrator's own
counsel and with accountants and other experts with respect to any matter
arising in connection with the Sub-Administrator's duties, and the
Sub-Administrator shall not be liable or accountable for any action taken or
omitted by it in good faith in accordance with such instructions or with the
opinion of such counsel, accountants, or other experts.
8.1.3. The Sub-Administrator shall at all times have the right to mitigate
or cure any and all losses, damages, costs, charges, fees, disbursements,
payments, expenses and liabilities to the Company, its shareholders or the
Administrator.
8.2. INDEMNIFICATION BY THE COMPANY AND THE ADMINISTRATOR.
8.2.1. As long as the Sub-Administrator acts in good faith and with due
diligence and without negligence, the Company and the Administrator shall
indemnify the Sub-Administrator, its directors, officers, employees, and agents
and hold them harmless from and against any and all actions, suits, and claims,
whether groundless or otherwise, and from and against any and all losses,
damages (excluding consequential, punitive or other indirect damages), costs,
charges, reasonable counsel fees and disbursements, payments, expenses, and
liabilities (including reasonable investigation expenses) arising directly or
indirectly out of the administrative services or any other service rendered to
the Company or the Administrator hereunder. The indemnity and defense provisions
set forth herein shall indefinitely survive the termination of this Agreement.
8.2.2. 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 or the Administrator may be asked for
indemnification under Section 8.2.1., the Board of Directors of the Company or
the Administrator shall be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further understood that the
Sub-Administrator will use all reasonable care to identify and notify the Board
of Directors of the Company or the Administrator promptly concerning any
situation which presents or appears likely to present the probability of such a
claim for indemnification against the Company or the Administrator, but failure
to do so in good faith shall not affect the rights hereunder.
9. INDEMNIFICATION BY THE SUB-ADMINISTRATOR.
9.1. The Sub-Administrator shall indemnify the Company, the Administrator,
and their directors, officers, employees, and agents and hold them harmless from
and against any and all actions, suits, and claims, whether groundless or
otherwise, and from and against any and all losses, damages (excluding
consequential, punitive or other indirect damages), costs, charges, reasonable
counsel fees and disbursements, payments, expenses, and liabilities (including
reasonable investigation expenses) arising directly or indirectly out of the
administrative services or any other service rendered to the Company and the
Administrator hereunder and arising or based upon the willful misfeasance or bad
faith of the Sub-Administrator, its directors, officers, employees, and agents
in the performance of its or their duties on behalf of the Company and the
Administrator. The indemnity and defense provisions set forth herein shall
indefinitely survive the termination of this Agreement.
9.2. 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 Sub-Administrator may be asked for
indemnification under Section 9.1, the Sub-Administrator shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the Company and the Administrator will use all
reasonable care to identify and notify the Sub-Administrator promptly concerning
any situation which presents or appears likely to present the probability of
such a claim for indemnification against the Sub-Administrator, but failure to
do so in good faith shall not affect the rights hereunder.
10. FORCE MAJEURE.
In the event the Sub-Administrator is unable to perform its obligations or
duties under the terms of this Agreement because of any act of God, strike,
riot, act of war, equipment failure, power failure or damage or other causes
reasonably beyond its control, the Sub-Administrator shall not be liable for any
loss, damage, cost, charge, counsel fee, payment, expense or inability to any
other party (whether or not a party to this Agreement) resulting from such
failure to perform its obligations or duties under this Agreement or otherwise
from such causes. This provision, however, shall in no way excuse the
Sub-Administrator from being liable to the Administrator or the Company or any
and all losses, damages, costs, charges, counsel fees, payments and expenses
incurred by the Administrator or the Company due to the non-performance or delay
in performance by the Sub-Administrator of its duties and obligation under this
Agreement if such non-performance or delay in performance reasonably could have
been prevented by the Sub-Administrator through back-up systems and other
procedures commonly employed by other administrators and sub-administrators in
the mutual fund industry, provided that the Sub-Administrator shall have the
right, at all times, to mitigate or cure any losses, including the making of
adjustments or corrections to any current or former shareholder accounts.
11. TERM OF AGREEMENT.
The term of this Agreement shall become effective on January 1, 2001 and
shall continue and remain in effect until December 31, 2004 (the "Initial
Term"), and thereafter for successive one year terms (each a "Renewal Term"),
unless terminated in accordance with the provisions of Article 13 below. The
Sub-Administrator shall furnish to the Company or the Administrator, promptly
upon a request by the Company or the Administrator, such information as may be
reasonably necessary to evaluate the terms of this Agreement or any extension,
renewal, or amendment thereof.
12. ENTIRE AGREEMENT; AMENDMENT AND ASSIGNMENT OF AGREEMENT.
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement, draft or proposal with respect to the
subject matter hereof. Any amendment to this Agreement shall be in writing and
signed by the parties hereto; provided, that no amendment that is material with
respect to the Company or any Fund shall be effective unless authorized by a
resolution of the Board of Directors of the Company or by a vote of a majority
of the outstanding voting securities of the Company or, in the case of an
amendment to this Agreement with respect to a particular Fund, by a resolution
of the Board of Directors of the Company or by a vote of a majority of the
outstanding voting securities of such Fund.
The assignment of this Agreement or any rights or obligations thereunder
shall be prohibited by either party without the written consent of the other
party. This Agreement shall inure to the benefit of and be binding upon the
parties and their successors and assigns.
13. TERMINATION OF AGREEMENT.
This Agreement may be terminated by any of the parties hereto, without the
payment of any penalty, only
a) during the Initial term and any Renewal Term: () by the mutual written
agreement of both parties; (b) by either party at the end of the Initial Term or
the end of any Renewal Term on 90 days' prior written notice; (c) for a material
breach of this Agreement, upon thirty (30) days prior written notice to the
breaching party; provided that the breaching party has not cured the material
breach of this Agreement during such thirty (30) day period or (d) effective
upon the liquidation of the Administrator, the Sub-Administrator, the Company or
any of the Funds. For purposes of the foregoing, the term "liquidation" shall
mean a transaction in which the assets of the Administrator, the
Sub-Administrator, the Company or any of the Funds, whichever the case may be,
are sold or otherwise disposed
of and proceeds therefrom are distributed in cash to the shareholders in
complete liquidation of the interests of such shareholders in the entity;
b) following the Initial Term of this Agreement and during any Renewal Term
for any reason upon ninety (90) days' prior written notice to the other parties;
and
c) in the case of termination by the Sub-Administrator pursuant to this
section, such termination shall not be effective until the Company and the
Administrator shall have contracted with one or more person(s) to serve as
successor Sub-Administrator(s) for the Company and such persons(s) shall have
assumed such position.
14. MISCELLANEOUS.
14.1. NOTICES. Any notice under this Agreement shall be given in writing,
addressed and delivered, or mailed postpaid: (a) if to the Sub-Administrator, to
SEI Investments Mutual Funds Services , Xxx Xxxxxxx Xxxxxx Xxxx, Xxxx, XX 00000,
Attention: General Counsel; and (b) if to the Administrator, to PBHG Fund
Services, 0000 Xxxxxxx Xxxxx Xxxxx , Xxxxx, XX 00000, Attention: Xxx X.
Xxxxxxxx.
14.2. CAPTIONS. The captions contained in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
14.3. INTERPRETATION. Nothing herein contained shall be deemed to require
the Company to take any action contrary to its Articles of Incorporation or
By-Laws, or any applicable statutory or regulatory requirement to which it is
subject or by which it is bound, or to relieve or deprive the Board of Directors
of its responsibility for and control of the conduct of the affairs of the
Company.
14.4. DEFINITIONS. Any question of interpretation of any term or provision
of this Agreement having a counterpart in or otherwise derived from a term or
provision of the 1940 Act shall be resolved by reference to such term or
provision of the 1940 Act and to interpretations thereof, if any, by the United
States courts or, in the absence of any controlling decision of any such court,
by rules, regulations, or orders of the SEC validly issued pursuant to the 1940
Act. In addition, where the effect of a requirement of the 1940 Act reflected in
any provision of this Agreement is relaxed by a rule, regulation, or order of
the SEC, whether of special or of general application, such provision shall be
deemed to incorporate the effect of such rule, regulation, or order.
14.5. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule, or otherwise, the remainder of
this Agreement shall not be affected thereby.
14.6. GOVERNING LAW. Except insofar as the 1940 Act or other federal laws
and regulations may be controlling, this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their respective officers hereunto duly authorized and their respective
corporate seals to be hereunto affixed, as of the day and year first above
written.
PBHG FUND SERVICES
By: Xxx X. Xxxxxxxx
Title: President
SEI Investments Mutual Funds Services
By: Xxxxxxx X. Xxxxx
Title: Vice President
SCHEDULE A
The Funds of the Company that will receive services pursuant to this Agreement
are:
PBHG Growth II
PBHG Large Cap Growth Fund
PBHG Select Value Fund
PBHG Mid-Cap Value Fund
PBHG Small Cap Value Fund
PBHG Technology & Communications Fund
PBHG Select 20 Fund
Date: _______________
SCHEDULE B
In compensation for the services provided to the Company, the Administrator
agrees to pay the Sub-Administrator a fee based upon the greater sum (higher
value) which results from making the following calculations:
A. Asset based fee calculated upon the combined assets of the Company and PBHG
Insurance Series Fund, Inc. at the annual rate of :
0.0165% on the first $10 billion of combined assets
0.0125% on the next $10 billion of combined assets
0.010% on combined assets in excess of $20 billion
b. A fee based on the aggregate number of Funds of the Company and PBHG
Insurance Series Fund, Inc. calculated at the sum of: $50,000 per Fund
