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ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT (this "AGREEMENT") is made as of the
10th day of June, 2014 (the "EFFECTIVE DATE"), by and between X'Xxxxxx EQUUS, a
statutory trust formed under the laws of the State of Delaware (the "COMPANY"),
and SEI Investments Global Funds Services, a statutory trust formed under the
laws of the State of Delaware (the "ADMINISTRATOR").
WHEREAS, the Company is registered as an investment company with the
U.S. Securities and Exchange Commission (the "SEC") under the Investment
Company Act of 1940, as amended (the "1940 ACT") and is a non-diversified,
closed-end management investment company that operates as an "interval fund"
pursuant to Rule 23c-3 promulgated by the SEC pursuant to the 1940 Act; and
WHEREAS, the Administrator has agreed, at the request of the Company,
to provide the Company with certain administrative services on the terms and
subject to the conditions hereinafter contained.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and intending to be legally bound, the Company and the
Administrator hereby agree as follows:
SECTION 1 DEFINITIONS
1.01 "1940 ACT" shall have the meaning given to such term in the preamble of
this Agreement.
1.02 "ADMINISTRATOR" shall have the meaning given to such term in the preamble
of this Agreement.
1.03 "AGREEMENT" shall have the meaning given to such term in the preamble set
forth above.
1.04 "AML REGIME" shall have the meaning given to such term in SECTION 12.12 of
this Agreement.
1.05 "AUTHORIZED PERSON" shall include, as applicable, any managing member,
general partner, director, trustee, investment manager or other Person having
similar status or performing similar functions, as the case may be, acting on
behalf of the Fund.
1.06 "BREACH NOTICE" shall have the meaning given to such term in SECTION
9.02.01 of this Agreement.
1.07 Unless the context otherwise requires and except as otherwise specified in
this Agreement, the term "COMPANY" shall include, as applicable, a director or
trustee, or other Person having similar status or performing similar functions,
as the case may be, acting on behalf of Company.
1.08 "COMPANY DATA" shall have the meaning given to such term in SECTION 2.04
of this Agreement.
1.09 "COMPANY MATERIALS" means any prospectus, registration statement,
statement of additional information, proxy solicitation and repurchase offer
materials, annual or other periodic report of the Company or any advertising,
marketing, shareholder communication, or promotional material generated by the
Company or relevant service provider from time to time, as appropriate,
including all amendments or supplements thereto.
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FUNDS SERVICES
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1.10 "CONFIDENTIAL INFORMATION" shall have the meaning given to such term in
SECTION 11.01 of this Agreement.
1.11 "CONVERSION" means the processes and activities required to transfer the
books and records of the Company from the Company or its prior administrator,
import the Company's data and files into the Administrator's system and such
other processes and activities identified as the responsibility of the
Administrator in accordance with the Conversion Plan.
1.12 "CONVERSION PLAN" shall have the meaning given to such term in SECTION
2.05 of this Agreement.
1.13 "DISCLOSING PARTY" shall have the meaning given to such term in SECTION
11.01 of this Agreement.
1.14 "GROSS NEGLIGENCE" means a conscience, voluntary act or omission in
reckless disregard of a legal duty and the rights of or consequences to
others.
1.15 "INITIAL TERM" shall have the meaning given to such term in SECTION 9.01
of this Agreement.
1.16 "INTERESTED PARTY" or "INTERESTED PARTIES" means any affiliate of the
Administrator and each of their respective officers, directors, employees,
agents, delegates and associates, including without limitation, SEI Investments
Management Corporation, an investment advisor registered with the U.S.
Securities and Exchange Commission and SEI Investments Distribution Company, a
broker dealer registered with the U.S. Securities and Exchange Commission.
1.17 "INTERESTS" means any partnership interest in, membership interest in,
shares of stock of or other equity interest in, as the case may be, the
Company.
1.18 "INVESTMENT MANAGER" shall have the meaning given to such term in the
preamble of this Agreement.
1.19 "INVESTMENTS" shall mean such cash, securities and all other assets and
property of whatsoever nature now owned or subsequently acquired by or for the
account of Company.
1.20 "LIQUIDATION" shall have the meaning given to such term in SECTION 9.02.02
of this Agreement.
1.21 "LIVE DATE" means the date on which the Company is launched or transferred
from a prior administrator and the Administrator begins calculating the
Company's official net asset values ("NAV").
1.22 "ORGANIZATIONAL DOCUMENTS" means, as applicable, the articles of
incorporation, declaration of Company, certificate of formation, memorandum of
association, partnership agreement, bylaws or other similar documentation
setting forth the respective rights and obligations of directors, managers and
Interest holders in the Company.
1.23 "PERSON" shall mean any natural person, partnership, estate, association,
custodian, nominee, limited liability company, corporation, trust, or other
legal entity.
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1.24 "PRICING SOURCES" shall have the meaning given to such term in SECTION 6
of this Agreement.
1.25 "PROPRIETARY INFORMATION" shall have the meaning given to such term in
SECTION 12.01 of this Agreement.
1.26 "REASONABLE STEPS" shall have the meaning given to such term in SECTION
11.01 of this Agreement.
1.27 "RECEIVING PARTY" shall have the meaning given to such term in SECTION
11.01 of this Agreement.
1.28 "RENEWAL TERM" shall have the meaning given to such term in SECTION 9.01
of this Agreement.
1.29 "WEB ACCESS" shall have the meaning given to such term in SECTION 12.01 of
this Agreement.
SECTION 2 APPOINTMENT AND CONTROL
2.01 SERVICES. The Company hereby appoints the Administrator to be, and the
Administrator agrees to act as, the administrative agent of the Company for the
term and subject to the provisions hereof. The Administrator shall perform or
cause to be performed the services set forth in this Agreement, including the
services set forth in SCHEDULE I of this Agreement and those agreed to in
writing (by completion of a supplement in the form attached hereto as SCHEDULE
IV) and signed by the parties from time to time (collectively, the "SERVICES").
In performing its duties under this Agreement, the Administrator will act in
all material respects in accordance with the Company's Organizational Documents
and registration statement (including its prospectus and statement of
additional information) as they may be amended (provided copies are delivered
to the Administrator).
2.02 AUTHORITY. Each of the activities engaged in under the provisions of this
Agreement by the Administrator on behalf of the Company shall be subject to the
overall direction and control of the Company or any Authorized Person;
provided, however, that the Administrator shall have the general authority to
do all acts deemed in the Administrator's good faith belief to be necessary and
proper to perform its obligations under this Agreement. In performing its
duties hereunder, the Administrator shall observe and comply with the Company's
registration statement, all applicable resolutions and/or directives of any
Authorized Person of which it has notice, and applicable laws which may from
time to time apply to the Services rendered by the Administrator. In the event
that the Company desires to amend its Organizational Documents in any manner
that can reasonably be expected to have a material impact on the
Administrator's performance of the Services hereunder, the Company shall notify
the Administrator in advance of such amendment and the parties will work
together in good faith to minimize the impact of such change on the
Administrator's operations and compensate the Administrator in connection
therewith as described in, and subject to SECTION 8.01, provided, however, that
nothing contained in this Agreement shall in any way limit the Company's right
to file at any time such amendments to any registration statement and/or
supplements to any prospectus or statement of additional information, of
whatever character, as the Company may deem advisable, such right being in all
respects absolute and unconditional. The Administrator (i) shall not have or be
required to have any authority to supervise the investment or reinvestment of
the securities or other properties which comprise the assets of the Company and
(ii) shall not provide any investment advisory
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services to the Company, and shall have no liability related to subclause (i)
and (ii) of this SECTION 2.02.
2.03 THIRD PARTIES; AFFILIATES. The Administrator may, subject to the
provisions set forth herein, delegate to, or sub-contract with, third parties
or affiliates administrative or other functions it deems necessary to perform
its obligations under this Agreement; provided, however, all fees and expenses
incurred in any delegation or sub-contract shall be paid by the Administrator
and the Administrator shall remain responsible to the Company for the acts and
omissions of such other entities as if such acts or omissions were the acts or
omissions of the Administrator; and provided, further, that the Administrator
shall, upon request, disclose whether it has engaged any third party to perform
any portion of the Services, including reasonable detail regarding the identity
of the third party, the process by which such third party was selected, the
nature of the Services performed by such third party and the Administrator's
oversight of the same. Notwithstanding the foregoing, in the event that the
Administrator wishes to delegate "high-level" Services, the Administrator shall
provide reasonable prior notice to the Company regarding such delegation. As
used herein, "high- level" Services means Services, which, in the
Administrator's reasonable discretion, amount to a material portion of the
Services that the Administrator has been appointed to provide pursuant to this
Agreement. The Company acknowledges that during the term of this Agreement, the
services to be performed by the Administrator may be completed by one or more
of the Administrator's affiliates or third parties located in or outside of the
United States of America.
2.04 COMPANY DATA. The Company shall be solely responsible for the accuracy,
completeness, and timeliness of all data and other information provided to the
Administrator by or on behalf of the Company pursuant to this Agreement
(including, without limitation, (i) prices, (ii) sufficient transaction
supporting documentation, (iii) detailed accounting methodologies with respect
to the Company's Investments, (iv) the terms of any agreement between the
Company or the Investment Manager and an investor regarding any dividend
reinvestment, fee arrangement, access to portfolio information or any other
arrangement that may impact or affect the Services, and (v) trade and settlement
information from prime brokers and custodians) (collectively, "COMPANY DATA").
All Company Data shall be provided to the Administrator on a timely basis and in
a format and medium reasonably requested by the Administrator from time to time.
The Company shall have an ongoing obligation to update as soon as practicable
all Company Data in respect of any material changes so that such information
remains current, materially complete and materially accurate. All Company Data
shall be prepared and maintained, by or on behalf of the Company, in accordance
with applicable law, the Company Materials and generally acceptable accounting
principles to the extent necessary to enable the Administrator to perform its
obligations under this Agreement. The Administrator shall be entitled to rely on
all Company Data and shall have no liability for any loss, damage or expense
incurred by the Company or any other Person to the extent that such loss, damage
or expense arises out of or is related to Company Data that is not timely,
current, complete and accurate.
2.05 CONVERSION PLAN. Promptly following the Effective Date, the Administrator
shall prepare a project plan ("CONVERSION PLAN") that sets forth the respective
roles and responsibilities of each of the parties in connection with the
Conversion or other implementation of the Company onto the Administrator's
system.
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SECTION 3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
3.01 The Company represents and warrants that:
3.01.01. it has full power, right and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby; the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly approved by all requisite
actions on its part, and no other proceedings on its part are necessary to
approve this Agreement or to consummate the transactions contemplated hereby;
this Agreement has been duly executed and delivered by it; this Agreement
constitutes a legal, valid and binding obligation, enforceable against it in
accordance with its terms;
3.01.02. it is not a party to any, and there are no, pending or threatened
legal, administrative, arbitral or other proceedings, claims, actions or
governmental or regulatory investigations or inquiries (collectively, "ACTIONS")
of any nature against it or its properties or assets which could, individually
or in the aggregate, have a material effect upon its business or financial
condition. There is no injunction, order, judgment, decree, or regulatory
restriction imposed specifically upon it or any of its properties or assets;
3.01.03. no existing Interest holder is a designated national and/or blocked
person as identified on the Office of Foreign Assets Control's list maintained
by the U.S. Department of Treasury (found at xxxx://xxx.xxxxx.xxx.xxxx) or any
other relevant regulatory or law enforcement agencies, AS APPLICABLE TO THE
COMPANY.
3.01.04. it is not in default under any contractual or statutory obligations
whatsoever (including the payment of any tax) which, individually or in the
aggregate, could materially and adversely affect its business or financial
condition;
3.01.05. it has obtained all consents and given all notices (regulatory or
otherwise), made all required regulatory filings and is in material compliance
with all applicable laws and regulations;
3.01.06. it has, or will have upon the commencement of operations, a valid
engagement with an independent auditor, custodian and broker and will provide
additional information regarding such service providers, including
non-confidential information regarding the terms of its agreement with such
service providers, upon reasonable request;
3.01.07. if necessary, any shareholder approval of this Agreement has been
obtained;
3.01.08. it has notified the Administrator of any and all separate agreements
between the Company and any third party that could have a material impact on
the Administrator's performance of its obligations pursuant to this Agreement;
3.01.09. it has disclosed the terms of any agreement between the Company or
the Investment Manager and an investor regarding any special fee or specific
fee arrangement or access to portfolio information that may materially impact
or affect the Services; and
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3.01.10. it has policies and procedures designed to make a reasonable
determination that each Interest holder meets the definition of "qualified
clients" under Rule 205-3 under the Investment Advisers Act of 1940 and related
guidance provided by the SEC or its Staff.
3.02 The Company covenants and agrees that:
3.02.01. it will furnish the Administrator from time to time with complete
copies, authenticated or certified, of each of the following:
(a) Copies of the following documents:
(1) Copies of the Company's current Organizational Documents and of
any amendments thereto, certified by the proper official of the
state in which such document has been filed.
(2) The Company's current bylaws and any amendments thereto; and
(3) Copies of resolutions of the board of trustees covering the
approval of this Agreement, authorization of a specified officer
of the Company to execute and deliver this Agreement and
authorization for specified officers of the Company to instruct
the Administrator.
(b) A list of all the officers of the Company, together with specimen
signatures of those officers who are authorized to instruct the
Administrator in all matters.
(c) Copies of all Company Materials, including the current prospectus and
statement of additional information for the Company.
(d) A list of all issuers whose securities the Company is restricted from
purchasing.
(e) A list of all affiliated persons (as such term is defined in the 0000
Xxx)xx Company that are broker-dealers.
(f) The identity of the Company's auditors along with contact information.
(g) The expense budget for the Company for the current fiscal year.
(h) A list of contact persons (primary, backup and secondary backup) of
the Company's investment adviser and, if applicable, sub-adviser, who
can be reached with respect to valuation matters.
(i) Copies of all Company Data reasonably requested by the Administrator
or necessary for the Administrator to perform its obligations pursuant
to this Agreement.
The Company shall promptly provide the Administrator with written notice of
any updates of or changes to any of the foregoing documents or information,
including an updated written copy of such document or information. Until
the Administrator receives such updated information or document, the
Administrator
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shall have no obligation to implement or rely upon such updated information
or document.
3.02.02. it shall timely perform or oversee the performance of all obligations
identified in this Agreement as obligations of the Company, including, without
limitation, providing the Administrator with all Company Data and
Organizational Documents reasonably requested by the Administrator;
3.02.03. it will notify the Administrator as soon as reasonably practical in
advance of any matter which could materially affect the Administrator's
performance of its duties and obligations under this Agreement, including any
amendment to the documents referenced in SECTION 3.02.01 above;
3.02.04. it will comply in all material respects with all applicable
requirements of the Securities Act of 1933, the Securities Exchange Act of
1934, the 1940 Act, and any laws, rules and regulations of governmental
authorities having jurisdiction;
3.02.05. any reference to the Administrator or this Agreement in the Company
Materials shall be limited solely to the description provided by the
Administrator in writing from time to time or such other description as the
parties shall mutually agree in advance and in writing;
3.02.06. it shall be solely responsible for its compliance with applicable
investment policies, the Company Materials (except for the description of the
Administrator in provided by the Administrator pursuant to Section 3.02.05
hereof), and any laws and regulations governing the manner in which its assets
may be invested, and shall be solely responsible for any losses attributable to
non-compliance with the Company Materials, and applicable policies, laws and
regulations governing such Company, its activities or the duties, actions or
omissions of the Investment Manager; and
3.02.07. it will promptly notify the Administrator in the event of any changes
to the representations and warranties made hereunder.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR
4.01 The Administrator represents and warrants that:
4.01.01. it has full power, right and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby; the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly approved by all requisite action
on its part, and no other proceedings on its part are necessary to approve this
Agreement or to consummate the transactions contemplated hereby; this Agreement
has been duly executed and delivered by it; this Agreement constitutes a legal,
valid and binding obligation, enforceable against it in accordance with its
terms.
4.01.02. it is not a party to any, and there are no, pending or threatened
Actions of any nature against it or its properties or assets which could,
individually or in the aggregate, have a material effect upon its business or
financial condition. There is no injunction, order, judgment, decree, or
regulatory restriction imposed specifically upon it or any of its properties or
assets.
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4.01.03. it is not in default under any statutory obligations whatsoever
(including the payment of any tax) which materially and adversely affects, or
is likely to materially and adversely affect, its business or financial
condition.
4.01.04. it has obtained all consents and given all notices (regulatory or
otherwise), made all required regulatory filings; and
4.01.05. it shall timely perform all obligations identified in this Agreement
as obligations of the Administrator; and
4.01.06. to the extent the Administrator acts as agent on behalf of the
Company hereunder, shall cause the Company to act in compliance with all
applicable requirements of the 1940 Act and other applicable laws, rules,
regulations as well as with any policies and procedures adopted by the Company
of which the Administrator has knowledge (it being understood that the
Administrator is deemed to have knowledge only of those policies or procedures
provided in advance and in writing to the Administrator).
4.01.07. it shall maintain at all times a program reasonably designed to
prevent violations of the federal securities laws (as defined in Rule 38a-1
under the 0000 Xxx) with respect to the services provided, and shall provide to
the Company a certification to such effect no less than annually or as
otherwise reasonably requested by the Company. The Administrator shall make
available its compliance personnel and shall provide summaries and other
relevant materials relating to such program as reasonably requested by the
Company.
4.01.08. it is in material compliance with all applicable laws and
regulations, including but not limited to anti-money laundering requirements.
4.01.09. it shall promptly notify the Company of updates to its
representations and warranties hereunder.
4.02 The Administrator covenants and agrees that:
4.02.01. it shall timely perform all obligations identified in this Agreement
as obligations of the Administrator; and
4.02.02. it will notify each Fund as soon as reasonably practical in advance
of any matter which could materially affect the performance of its obligations
hereunder.
SECTION 5 LIMITATION OF LIABILITY AND INDEMNIFICATION
5.01 THE DUTIES OF THE ADMINISTRATOR SHALL BE CONFINED TO THOSE EXPRESSLY SET
FORTH IN THIS AGREEMENT, AND NO IMPLIED DUTIES ARE ASSUMED BY OR MAY BE ASSERTED
AGAINST THE ADMINISTRATOR. EXCEPT TO THE EXTENT ARISING OUT OF THE
ADMINISTRATOR'S FRAUD, GROSS NEGLIGENCE OR CRIMINAL MISCONDUCT WHEN PROVIDING
THE SERVICES, THE ADMINISTRATOR'S AGGREGATE LIABILITY TO THE COMPANY WILL BE
LIMITED TO MONETARY DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID HEREUNDER
DURING THE THIRTY-SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE
FIRST SUCH CLAIM TO OCCUR (THE "LIABILITY
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CAP"). FOR PURPOSES OF THE FOREGOING, THE LIABILITY CAP SHALL BE CALCULATED BY
MULTIPLYING THE AVERAGE MONTHLY FEE PAYABLE TO THE ADMINISTRATOR FOR THE THREE
MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM TO OCCUR
BY THIRTY-SIX, OR IF THE EVENT GIVING RISE TO THE FIRST CLAIM OCCURS DURING THE
FIRST THREE MONTHS FROM THE LIVE DATE, MULTIPLYING THE FEE PAYABLE TO THE
ADMINISTRATOR FOR THE MONTH IN WHICH THE CLAIM OCCURS BY THIRTY-SIX For the
avoidance of doubt, the Administrator shall not be responsible for any breach
in the performance of its obligations under this Agreement due to (i) the
failure or delay of the Company or either of its respective agents to perform
its obligations under this Agreement or (ii) the Administrator's reliance on
Company Data. Each party shall have the duty to mitigate its damages for which
another party may become responsible. As used in this SECTION 5, the term
"ADMINISTRATOR" shall include the officers, directors, employees, affiliates
and agents of the Administrator as well as that entity itself.
5.02 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN
NO EVENT SHALL ANY PARTY HERETO BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL,
PUNITIVE, CONSEQUENTIAL, OR OTHER NON- DIRECT DAMAGES OF ANY KIND WHETHER SUCH
LIABILITY IS PREDICATED ON CONTRACT, STRICT LIABILITY, OR ANY OTHER THEORY AND
REGARDLESS OF WHETHER THE OTHER PARTIES ARE ADVISED OF THE POSSIBILITY OF ANY
SUCH DAMAGES. For the avoidance of doubt, the following shall be considered
direct damages to the extent they result directly from the breaching party's
failure to perform in accordance with this Agreement: (i) any loss, damage or
expense caused by or arising from the Gross Negligence, bad faith or fraud of
such party; (ii) a material violation of law or regulation applicable to such
party; and (iii) any misstatement or omission in the Company Materials to the
extent such misstatement or omission is based upon input from such party.
5.03 The Administrator may, from time to time, provide to the Company services
and products ("SPECIAL THIRD PARTY SERVICES") from external third party sources
that are Pricing Sources or other similar service providers ("SPECIAL THIRD
PARTY VENDORS"). The Company acknowledges and agrees that the Special Third
Party Services are confidential and proprietary trade secrets of the Special
Third Party Vendors. Accordingly, the Company shall honor requests by the
Administrator and the Special Third Party Vendors to protect their proprietary
rights in their data, information and property including requests that the
Company place copyright notices or other proprietary legends on printed matter,
print outs, tapes, disks, film or any other medium of dissemination. The Company
further acknowledges and agrees that all Special Third Party Services are
provided on an "AS IS WITH ALL FAULTS" basis solely for such Company's internal
use, and as an aid in connection with the receipt of the Services. The Company
may use Special Third Party Services as normally required on view-only screens
and hard copy statements, reports and other documents necessary to support such
Company's investors and may provide such information, statements, reports and
other documents to the Company's Authorized Persons; however the Company shall
not distribute any Special Third Party Services to other third parties. THE
ADMINISTRATOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY,
FITNESS FOR A PARTICULAR USE, OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE
SPECIAL THIRD PARTY SERVICES. THE ADMINISTRATOR SHALL NOT BE LIABLE FOR ANY
DAMAGES SUFFERED BY THE COMPANY IN THE USE OF ANY OF THE SPECIAL THIRD PARTY
SERVICES.
5.04 The Administrator may apply to Company, the Investment Manager or any
Person acting on Company's behalf at any time for instructions and may, with
the prior written consent
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of the Company, consult counsel for Company or, with the prior written consent
of the Investment Manager, counsel for the Investment Manager or with
accountants, counsel and other experts with respect to any matter arising in
connection with the Administrator's duties hereunder, and, subject to SECTION
5.01, 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
advice of counsel, accountants or other experts. Also, the Administrator shall
not be liable for actions taken pursuant to any document which it reasonably
believes to be genuine and to have been signed by an Authorized Person. The
Administrator shall not be held to have notice of any change of authority of any
officer, employee or agent of the Company until receipt of written notice
thereof. To the extent that the Administrator consults with the Company's
counsel pursuant to this provision, any such expense shall be borne by the
Company.
5.05 The Administrator shall have no liability for its reliance on Company Data
or the performance or omissions of unaffiliated third parties such as, by way of
example and not limitation, transfer agents, sub-transfer agents, custodians,
prime brokers, placement agents, third party marketers, asset data service
providers, investment advisers (including, without limitation, the Investment
Manager) or sub-advisers, current or former third party service providers,
Pricing Sources, software providers, printers, postal or delivery services,
prior administrators, telecommunications providers and processing and settlement
services so long as, to the extent such third parties were selected by the
Administrator, such third parties were selected with due care. The Administrator
may rely on and shall have no duty to investigate or confirm the accuracy or
adequacy of any information provided by any of the foregoing third parties.
5.06 The Administrator shall have no obligations with respect to any laws
relating to the distribution, purchase or sale of Shares. Further, the Company
assumes full responsibility for the preparation, contents and distribution of
its Company Materials (except with respect to the accuracy of the description of
the Administrator in the Company Materials as provided by the Administrator
pursuant to SECTION 3.02.05 hereof) and its compliance with any applicable laws,
rules, and regulations.
5.07 The Company shall indemnify, defend and hold harmless the Administrator
from and against and the Administrator shall have no liability in connection
with 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: (i) any act or
omission of the Administrator in carrying out its duties hereunder or as a
result of the Administrator's reliance upon any instructions, notice or
instrument that the Administrator believes is genuine and signed or presented by
an Authorized Person of the Company; provided that this indemnification shall
not apply if any such loss, damage or expense is caused by or arises from the
Administrator's bad faith, Gross Negligence or fraud in the performance of the
Services; (ii) any violation by the Company or the Investment Manager of any
applicable investment policy, law or regulation, (iii) any misstatement or
omission in the Company Materials (except in respect of the description of the
Administrator as provided by the Administrator pursuant to SECTION 3.02.05
hereof) or any Company Data; (iv) any breach by the Company of any
representation, warranty or agreement contained in this Agreement; (v) any act
or omission of the Company, the Company's former administrator, a Special Third
Party Vendor, the Company's other service providers (such as custodians, prime
brokers, transfer agents, investment advisors andsub-advisers); (vi)
any pricing error caused by the failure of the Company's investment adviser or
sub- adviser to provide a trade ticket or for incorrect information included in
any trade ticket; or (vii) any act or omission of the Administrator as a result
of the Administrator's compliance
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with the AML Regime, including, but not limited to, returning an investor's
Investment or restricting the payment of redemption proceeds.
5.08 The indemnification rights afforded to the Parties hereunder shall include
the right to reasonable advances of defense expenses on an as-incurred basis in
the event of any pending or threatened litigation or Action with respect to
which indemnification hereunder may ultimately be merited. If in any case the
indemnifying Party is asked to indemnify or hold the indemnified Party
harmless, the indemnified Party shall promptly advise the indemnifying Party of
the pertinent facts concerning the situation in question, and the indemnified
Party will use all reasonable care to identify and notify the indemnifying
Party promptly concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification, but failure to do
so shall not affect the rights hereunder.
5.09 The indemnifying Party shall be entitled to participate at its own expense
or, if it so elects, to assume the defense of any suit brought to enforce any
claims subject to this indemnity provision. If the indemnifying Party elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the indemnifying Party and satisfactory to the indemnified Party,
whose approval shall not be unreasonably withheld. In the event that the
indemnifying Party elects to assume the defense of any suit and retain counsel,
the indemnified Party shall bear the fees and expenses of any additional
counsel retained by it. If the indemnifying Party does not elect to assume the
defense of a suit, it will advance to the indemnified Party the fees and
expenses of any counsel retained by the indemnified Party. None of the parties
hereto shall settle or compromise any action, suit, proceeding or claim if such
settlement or compromise provides for an admission of liability on the part of
the indemnified party without such indemnified party's written consent.
5.10 THE COMPANY AND THE ADMINISTRATOR HAVE FREELY AND OPENLY NEGOTIATED THIS
AGREEMENT, INCLUDING THE PRICING, WITH THE KNOWLEDGE THAT THE LIABILITY OF THE
PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
5.11 The provisions of this SECTION 5 shall survive the termination of this
Agreement.
SECTION 6 VALUATION
The Administrator is entitled to rely on the price and value information
(hereinafter "VALUATION INFORMATION") provided by prior administrators, brokers
and custodians, investment advisors (including, without limitation, the
Investment Manager) an underlying fund in which the Company invests, if
applicable, the Company's board of directors or valuation committee, or any
third-party pricing services selected by the Administrator, the Company's
investment advisor or the Company (collectively hereinafter referred to as the
"PRICING SOURCES") as reasonably necessary in the performance of the Services.
The Administrator shall have no obligation to obtain Valuation Information from
any sources other than the Pricing Sources and may rely on estimates provided
by the Company's investment adviser or the applicable underlying fund. In the
event that the Company's investment adviser does not provide a timely value for
an underlying fund, the Administrator shall have the right to use the prior
month's valuation in its calculation of the current month's NAV, and the
Administrator shall have no liability and shall be indemnified by the
applicable Company in connection with such action. The Administrator shall
have no liability or responsibility for the accuracy of the Valuation
Information provided by a Pricing Source or the delegate of a Pricing Source
and the Company shall indemnify and defend the Administrator against any loss,
damages, costs, charges or reasonable counsel fees and expenses in connection
with any inaccuracy
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of such Valuation Information. The Company shall not use Valuation Information
obtained from a Special Third Party Vendor for any purpose other than in
connection with the Services and in accordance with the provisions of this
Agreement.
SECTION 7 ALLOCATION OF CHARGES AND EXPENSES
7.01 THE ADMINISTRATOR. The Administrator shall bear all expenses in connection
with the performance of its services under this Agreement, expect as otherwise
provided herein.
7.02 COMPANY EXPENSES. The Company assumes and shall pay or cause to be paid
all expenses of the Company not otherwise allocated in this Agreement,
including, without limitation, organizational costs; taxes; expenses for legal
and auditing services; the expenses of preparing (including typesetting),
printing and mailing reports, Company Materials, proxy solicitation and
repurchase offer materials and notices to existing shareholders; all expenses
incurred in connection with issuing and redeeming Shares; the costs of standard
(e.g. Bloomberg, Interactive Data Corp., Reuters) Pricing Sources; the cost of
non-standard Pricing Sources if specifically asked for by the Company; the
costs of loan credit activity data; the costs of escrow and custodial services;
the cost of document retention and archival services, the costs of responding
to document production requests; the cost of initial and ongoing registration
of the Shares under Federal and state securities laws; costs associated with
attempting to locate lost shareholders; all expenses incurred in connection
with any non-standard custom programming or systems modifications required to
provide any reports or services requested by the Company; any initial expenses,
if applicable, incurred to reprint the Company documents identifying the
Administrator (along with its address and telephone number) as the Company's
new administrator; costs associated with DST FanMail or similar reporting
service; bank service charges; NSCC trading charges; fees and out-of- pocket
expenses of directors; the costs of directors' meetings; insurance; interest;
brokerage costs; litigation and other extraordinary or nonrecurring expenses;
and all fees and charges of other service providers to the Company. The Company
shall reimburse the Administrator for its reasonable costs and out-of-pocket
expenses incurred in the performance of the Services, including all reasonable
charges for independent third party audit charges, printing, copying, postage,
telephone, and fax charges incurred by the Administrator in the performance of
its duties.
SECTION 8 COMPENSATION
8.01 FEES. The Company shall pay to the Administrator compensation for the
services performed and the facilities and personnel provided by the
Administrator pursuant to this Agreement, its pro-rata portion of the fees set
forth in the written fee schedule annexed hereto as SCHEDULE II and
incorporated herein. The Company shall have no right of set- off. The fees set
forth herein are determined based on the characteristics of the funds
established by the Company as of the Effective Date. The addition of any new
fund as a fund under the Company that is materially different or a material
change to an existing funds may give rise to an adjustment to the fees set
forth in this Agreement. In the event of the addition of such a fund or such a
change to an existing fund, the parties shall negotiate any adjustment to the
fees payable hereunder in good faith; provided, however, that if the parties
cannot in good faith agree on such adjustment to the fees within a reasonable
period of time, the Administrator may terminate this Agreement with respect to
such fund upon sixty (60) days prior written notice to the Company. The Company
shall pay the Administrator's fees monthly in U.S. Dollars, unless otherwise
agreed to by the parties. If this Agreement becomes effective subsequent to the
first day of any calendar month or terminates before the last day of any
calendar month, the Administrator's compensation for that part of the month in
which this Agreement is in
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effect shall be prorated in a manner consistent with the calculation of the fees
as set forth in SCHEDULE II. The Company agrees to pay interest on all amounts
past due in an amount equal to the lesser of the maximum amount permitted by
applicable law or the monthly rate of one and one-half percent (1 1/2 %) times
the amount past due multiplied by the number of whole or partial months from the
date on which such amount was first due up to and including the day on which
payment is received by the Administrator.
8.02 RESERVED.
SECTION 9 DURATION AND TERMINATION
9.01 TERM AND RENEWAL. Subject to SECTION 9.02, this Agreement shall become
effective as of the Effective Date and shall remain in effect for a period of
three (3) years from and after the Live Date (the "INITIAL TERM"), and
thereafter shall, subject to the requirements of the 1940 Act, automatically
renew for successive one (1) year terms (each such period, a "RENEWAL TERM")
unless terminated by any party giving written notice of non-renewal at least
ninety (90) days prior to the last day of the then current term to each other
party hereto.
9.02 TERMINATION FOR CAUSE.
9.02.01. This Agreement, subject to and in accordance with the 1940 Act, may
be terminated by any party giving at least sixty days prior notice in writing
to the other parties if at anytime the other party or parties have been first
(i) notified in writing that such party shall have materially failed to perform
its duties and obligations under this Agreement (such notice shall be of the
specific asserted material breach) ("BREACH NOTICE") and (ii) the party
receiving the Breach Notice shall not have remedied the noticed failure within
sixty days after receipt of the Breach Notice requiring it to be remedied.
Within ten days following receipt of a Breach Notice, the receiving party shall
either provide a statement disputing the existence of a material breach
together with reasonable supporting documentation related to such statement or
a proposal for remedying such material breach. If, in the applicable Fund's
reasonable opinion, the proposal for remedying the material breach identified
in the Breach Notice will not cure such material breach, the Fund shall discuss
the same with the Administrator and provide the Administrator a reasonable
opportunity to address the Fund's concerns. If the Administrator's revised
proposal continues, in the Fund's reasonable opinion, to be inadequate to
remedy the material breach, then the Fund shall have the right to terminate
this Agreement upon written notice to the Administrator.
9.02.02. This Agreement may be terminated with respect to a particular fund by
any party giving ninety (90) days prior notice in writing to the other parties
prior to the determination of the Board to commence Liquidation (as hereinafter
defined) of such fund. For purposes of this SECTION 9.02.02 the term
"Liquidation" shall mean a transaction in which all the assets of a fund are
sold or otherwise disposed of and proceeds there from are distributed in cash
to the Shareholders in complete liquidation of the interests of Shareholders in
such fund. A termination pursuant to this SECTION 9.02.02 shall be effective as
of the date of such Liquidation. Notwithstanding the foregoing, the right to
terminate set forth in this SECTION 9.02.02 shall not relieve the liquidating
fund of its obligation to pay the fees set forth on SCHEDULE II for the
remainder of the ninety (90) day period set forth in this SECTION 9.02.02,
which amount shall be payable prior to the effective date of such Liquidation.
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9.02.03. If the Administrator is unable to successfully convert Company to its
operational environment within a reasonable period of time following the
Effective Date due to untimely, materially inaccurate or materially incomplete
Company Data, the Administrator shall have the right to terminate this
Agreement, in its entirety or solely with respect to such fund, upon written
notice and such termination shall be effective upon the date set forth in such
notice.
9.02.04. Notwithstanding anything contained in this Agreement to the contrary,
in the event of a merger (except for a merger between a fund and an affiliated
fund and, as a result of such merger, there is no change to the total fund
assets under the administration of the Administrator), acquisition, change in
control, re-structuring, re-organization or any other decision involving the
Company or any affiliate (as defined in the Investment Company Act of 1940, as
amended) of the Company that causes it to cease to use the Administrator as a
provider of the Services in favor of another service provider prior to the last
to occur of (a) the date that is the first anniversary of the Live Date and (b)
the expiration of the then current term of this Agreement, the Administrator
shall use reasonable efforts to facilitate the deconversion of the Company to
such successor service provider; provided, however that the Administrator makes
no guaranty that such deconversion shall happen as of any particular date. In
connection with the foregoing and prior to the effective date of such
deconversion, the Company shall pay to the Administrator an amount equal to
$50,000. This Agreement shall terminate effective as of the conclusion of the
deconversion as set forth in this Section. This clause shall become effective
after the Fund has been live in production with SEI Global Investments after a
ramp-up period of nine (9) months
9.03 EFFECT OF TERMINATION.
9.03.01. The termination of this Agreement shall be without prejudice to any
rights that may have accrued hereunder to any party hereto prior to such
termination.
9.03.02. After termination of this Agreement and upon payment of all accrued
fees, reimbursable expenses and other moneys owed to the Administrator, the
Administrator shall send to Company, or as it shall direct, all books of
account, records, registers, correspondence, documents and assets relating to
the affairs of or belonging to Company in the possession of or under the control
of the Administrator or any of its agents or delegates.
9.03.03. In the event any and all accrued fees, reimbursable expenses and other
moneys owed to the Administrator hereunder remain unpaid in whole or in part for
more than thirty days past due, the Administrator, without further notice, may
take any and all actions it deems necessary to collect such amounts due, and any
and all of its collection expenses, costs and fees shall be paid by Company,
including, without limitation, administrative costs, attorneys fees, court
costs, collection agencies or agents and interest.
9.03.04. Notwithstanding the foregoing, in the event this Agreement is
terminated and for any reason the Administrator, with the written consent of
Company, in fact continues to perform any one or more of the services
contemplated by this Agreement, the pertinent provisions of this Agreement,
including without limitation, the provisions dealing with payment of fees and
indemnification
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shall continue in full force and effect. The Administrator shall be entitled to
collect from Company, in addition to the compensation described in SCHEDULE II,
the amount of all of the Administrator's expenses in connection with the
Administrator's activities following such termination, including without
limitation, the delivery to the Company and/or its designees of the Company's
property, records, instruments and documents.
SECTION 10 CONFLICTS OF INTEREST
10.01 NON-EXCLUSIVE. The services of the Administrator rendered to Company are
not deemed to be exclusive. The Administrator is free to render such services to
others. The Administrator shall not be deemed to be affected by notice of, or to
be under any duty to disclose to Company or Person acting on Company's behalf,
information which has come into its possession or the possession of an
Interested Party in the course of or in connection with providing administrative
or other services to any other person or in any manner whatsoever other than in
the course of carrying out its duties pursuant to this Agreement.
10.02 RIGHTS OF INTERESTED PARTIES. Subject to applicable law, nothing herein
contained shall prevent:
10.02.01. an Interested Party from buying, holding, disposing of or otherwise
dealing in any securities or other investments for its own account or for the
account of any of its customers and receiving remuneration in connection
therewith, notwithstanding that the same or similar securities or other
investments may be held by or for the account of Company;
10.02.02. an Interested Party from buying, holding, disposing of or otherwise
dealing in any Shares for its own account or the account of any of its
customers or from receiving remuneration in connection therewith, with the same
rights which it would have had if the Administrator were not a party to this
Agreement; provided, however, that the prices quoted by the Administrator are
no more favorable to the Interested Party than to a similarly situated investor
in or redeeming holder of Shares;
10.02.03. an Interested Party from receiving any commission or other
remuneration which it may negotiate in connection with any sale or purchase of
Shares or Investments effected by it for the account of Company; provided,
however, that the amount of such commission or other remuneration is negotiated
at arm's length; and
10.02.04. an Interested Party from contracting or entering into any financial,
banking or other transaction with Company or from being interested in any such
contract or transaction; provided, however, that the terms of such transaction
are negotiated at arm's length.
SECTION 11 CONFIDENTIALITY
11.01 CONFIDENTIAL INFORMATION. The Administrator and the Company (in such
capacity, the "RECEIVING PARTY") acknowledge and agree to maintain the
confidentiality of Confidential Information (as hereinafter defined) provided
by the Administrator and the Company (in such capacity, the "DISCLOSING PARTY")
in connection with this Agreement. The Receiving Party shall not disclose or
disseminate the Disclosing Party's Confidential Information to any Person other
than those employees, agents, contractors, subcontractors and
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licensees of the Receiving Party, and with respect to the Administrator as a
Receiving Party, to those employees, agents, technology service providers,
contractors, subcontractors, licensors and licensees of any agent or affiliate,
who have a need to know it in order to assist the Receiving Party in performing
its obligations, or to permit the Receiving Party to exercise its rights under
this Agreement. In addition, the Receiving Party (a) shall take all Reasonable
Steps (as hereinafter defined) to prevent unauthorized access to the Disclosing
Party's Confidential Information, and (b) shall not use the Disclosing Party's
Confidential Information, or authorize other Persons to use the Disclosing
Party's Confidential Information, for any purposes other than in connection
with performing its obligations or exercising its rights hereunder. As used
herein, "Reasonable Steps" means steps that a party takes to protect its own,
similarly confidential or proprietary information of a similar nature, which
steps shall in no event be less than a reasonable standard of care.
The term "CONFIDENTIAL INFORMATION," as used herein, means any of the
Disclosing Party's proprietary or confidential information including, without
limitation, any non-public personal information (as defined in Regulation S-P)
of the Disclosing Party, its affiliates, their respective clients or suppliers,
or other Persons with whom they do business, that may be obtained by the
Receiving Party from any source or that may be developed as a result of this
Agreement, the terms of (or any exercise of rights granted by) this Agreement,
technical data; trade secrets; investment strategies ; portfolio positions;
know-how; business processes; product plans; product designs; service plans;
services; customer lists and customers; markets; software; developments;
inventions; processes; formulas; technology; designs; drawings; and marketing,
distribution or sales methods and systems; sales and profit figures or other
financial information that is disclosed, directly or indirectly, to the
Receiving Party by or on behalf of the Disclosing Party, whether in writing,
orally or by other means and whether or not such information is marked as
confidential.
Nonpublic personal financial information relating to consumers or customers of
the Company provided by, or at the direction of the Company to the
Administrator, or collected or retained by the Administrator in the course of
performing its duties hereunder, shall be considered Confidential Information.
The Administrator shall not give, sell or in any way transfer such information
to any person or entity, other than affiliates of the Administrator and third
parties permitted by SECTION 2.03 (in connection with performance of the
Services or the Administrator's own internal operations) except at the
direction of the Company or as required or permitted by law. The Administrator
represents, warrants and agrees that it has in place and will maintain
physical, electronic and procedural safeguards reasonably designed to protect
the security, confidentiality and integrity of, and to prevent unauthorized
access to or use of records and information relating to consumers or customers
of the Company. The Company represents to the Administrator that it has adopted
a statement of its privacy policies and practices if required by applicable
privacy laws and regulations, and agrees to provide the Administrator with a
copy of such statement annually.
11.02 EXCLUSIONS. The provisions of this SECTION 11 respecting Confidential
Information shall not apply to the extent, but only to the extent, that such
Confidential Information: (a) is already known to the Receiving Party free of
any disclosing restriction at the time it is obtained from the Disclosing
Party, (b) is subsequently learned from an independent third party free of any
disclosing restriction from the Disclosing Party and without breach of this
Agreement; (c) is or becomes publicly available through no wrongful act of the
Receiving Party or any third party; (d) is independently developed by or for
the Receiving Party without use of any Confidential Information of the
Disclosing Party; or (e) is required to be disclosed pursuant to an applicable
law, rule, regulation, government requirement or court order, or the rules of
any stock exchange (provided, however, that the Receiving Party shall advise
the Disclosing Party of such required disclosure promptly upon
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learning thereof in order to afford the Disclosing Party a reasonable
opportunity to contest, limit and/or assist the Receiving Party in crafting
such disclosure).
11.03 PERMITTED DISCLOSURE. The Receiving Party shall advise its employees,
agents, contractors, subcontractors and licensees, and shall require its
affiliates to advise their employees, agents, contractors, subcontractors and
licensees, of the Receiving Party's obligations of confidentiality and non-use
under this SECTION 11, and shall be responsible for ensuring compliance by its
and its affiliates' employees, agents, contractors, subcontractors and
licensees with such obligations. In addition, the Receiving Party shall require
all Persons that are provided access to the Disclosing Party's Confidential
Information, other than the Receiving Party's accountants and legal counsel, to
execute confidentiality or non-disclosure agreements containing provisions
substantially similar to those set forth in this SECTION 11. The Receiving
Party shall promptly notify the Disclosing Party in writing upon learning of
any unauthorized disclosure or use of the Disclosing Party's Confidential
Information by such Persons.
11.04 EFFECT OF TERMINATION. Upon the Disclosing Party's written request
following the termination of this Agreement, the Receiving Party promptly shall
return to the Disclosing Party, or destroy, all Confidential Information of the
Disclosing Party provided under or in connection with this Agreement, including
all copies, portions and summaries thereof.
Notwithstanding the foregoing sentence, (a) the Receiving Party may retain one
copy of each item of the Disclosing Party's Confidential Information for
purposes of identifying and establishing its rights and obligations under this
Agreement, for archival or audit purposes and/or to the extent required by
applicable law, and (b) the Administrator shall have no obligation to return or
destroy Confidential Information of the Company that resides in save tapes of
Administrator; provided, however, that in either case all such Confidential
Information retained by the Receiving Party shall remain subject to the
provisions of SECTION 11 for so long as it is so retained. If requested by the
Disclosing Party, the Receiving Party shall certify in writing its compliance
with the provisions of this SECTION 11.
SECTION 12 MISCELLANEOUS PROVISIONS
12.01 INTERNET ACCESS. Data and information may be made electronically
accessible to Company, its adviser and/or sub-adviser(s) and its investors
through Internet access to one or more web sites provided by the Administrator
("WEB ACCESS"). As between the Company and Administrator, the Administrator
shall own all right, title and interest to such Web Access, including, without
limitation, all content, software, interfaces, documentation, data, trade
secrets, design concepts, "look and feel" attributes, enhancements,
improvements, ideas and inventions and all intellectual property rights
inherent in any of the foregoing or appurtenant thereto including all patent
rights, copyrights, trademarks, know-how and trade secrets (collectively, the
"PROPRIETARY INFORMATION"). The Company recognizes that the Proprietary
Information is of substantial value to the Administrator and shall not use or
disclose the Proprietary Information except as specifically authorized in
writing by the Administrator. Use of the Web Access by the Company or its
agents or investors will be subject to any additional terms of use set forth on
the web site. All Web Access and the information (including text, graphics and
functionality) on the web sites related to such Web Access is presented "As Is"
and "As Available" without express or implied warranties including, but not
limited to, implied warranties of non-infringement, merchantability and fitness
for a particular purpose. The Administrator neither warrants that the Web
Access will be uninterrupted or error free, nor guarantees the accessibility,
reliability, performance, timeliness, sequence, or completeness of information
provided on the Web Access.
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12.02 INDEPENDENT CONTRACTOR. In making, and performing under, this Agreement,
the Administrator shall be deemed to be acting as an independent contractor of
the Company and neither the Administrator nor its employees shall be deemed an
agent, affiliate, legal representative, joint venturer or partner of the
Company. No party is authorized to bind any other party to any obligation,
affirmation or commitment with respect to any other Person.
12.03 ASSIGNMENT; BINDING EFFECT. The Company may not assign, delegate or
transfer, by operation of law or otherwise, this Agreement (in whole or in
part), or any of the Company's obligations hereunder, without the prior written
consent of the Administrator, which consent shall not be unreasonably withheld
or delayed. The Administrator may assign or transfer, by operation of law or
otherwise, all or any portion of its rights under this Agreement to an affiliate
of the Administrator or to any person or entity who purchases all or
substantially all of the business or assets of the Administrator to which this
Agreement relates, provided that such affiliate, person or entity agrees in
advance and in writing to be bound by the terms, conditions and provisions of
this Agreement. Subject to the foregoing, all of the terms, conditions and
provisions of this Agreement shall be binding upon and shall inure to the
benefit of each party's successors and permitted assigns. Any assignment,
delegation, or transfer in violation of this provision shall be void and without
legal effect.
12.04 AGREEMENT FOR SOLE BENEFIT OF THE ADMINISTRATOR AND COMPANY. This
Agreement is for the sole and exclusive benefit of the Administrator and the
Company and will not be deemed to be for the direct or indirect benefit of
either (i) the clients or customers of the Administrator or the Company or (ii)
the Investment Manager. The clients or customers of the Administrator or the
Company will not be deemed to be third party beneficiaries of this Agreement
nor to have any other contractual relationship with the Administrator by reason
of this Agreement and each party hereto agrees to indemnify and hold harmless
the other party from any claims of its clients or customers against the other
party including any attendant expenses and attorneys' fees, based on this
Agreement or the services provided hereunder.
12.05 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to any choice or conflict of law provision or rule that would cause the
application of the laws of any other jurisdiction. To the extent that the
applicable laws of the State of New York, or any of the provisions of this
Agreement, conflict with the applicable provisions of the 1940 Act, the
Securities Act of 1933 or the Securities Exchange Act of 1934, the latter shall
control. Each party to this Agreement, by its execution hereof, (i) hereby
irrevocably submits to the nonexclusive jurisdiction of the state and federal
courts of the State of New York or the United States District Courts residing
in the Southern District of the State of New York for the purpose of any action
between the parties arising in whole or in part under or in connection with
this Agreement, and (ii) hereby waives to the extent not prohibited by
applicable law, and agrees not to assert, by way of motion, as a defense or
otherwise, in any such action, any claim that it is not subject personally to
the jurisdiction of the above- named courts, that its property is exempt or
immune from attachment or execution, that any such action brought in one of the
above-named courts should be dismissed on grounds of forum non conveniens,
should be transferred or removed to any court other than one of the above-named
courts, or should be stayed by reason of the pendency of some other proceeding
in any other court other than one of the above-named courts, or that this
Agreement or the subject matter hereof may not be enforced in or by such
court.
12.06 EQUITABLE RELIEF. Each party agrees that any other party's violation of
the provisions of SECTION 11 (CONFIDENTIALITY) may cause immediate and
irreparable harm to the other party
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for which money damages may not constitute an adequate remedy at law. Therefore,
the parties agree that, in the event either party breaches or threatens to
breach said provision or covenant, the other party shall have the right to seek,
in any court of competent jurisdiction, an injunction to restrain said breach or
threatened breach, without posting any bond or other security.
12.07 DISPUTE RESOLUTION. Whenever either party desires to institute legal
proceedings against the other concerning this Agreement, it shall provide
written notice to that effect to such other party. The party providing such
notice shall refrain from instituting said legal proceedings for a period of
thirty days following the date of provision of such notice. During such period,
the parties shall attempt in good faith to amicably resolve their dispute by
negotiation among their executive officers. This SECTION 12.07 shall not
prohibit either party from seeking, at any time, equitable relief as permitted
under SECTION 12.06.
12.08 NOTICE. All notices provided for or permitted under this Agreement (except
for correspondence between the parties related to operations in the ordinary
course) shall be deemed effective upon receipt, and shall be in writing and (a)
sent by commercial overnight courier with written verification of receipt, or
(b) sent by certified or registered U. S. mail, postage prepaid and return
receipt requested, to the party to be notified, at the address for such party
set forth below, or at such other address of such party specified in the opening
paragraph of this Agreement. Notices to the Administrator shall be sent to the
attention of: General Counsel, SEI Investments Global Funds Services, Xxx
Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000, with a copy, given in the manner
prescribed above, to your current relationship manager. Notices to Company shall
be sent to the persons specified in SCHEDULE III.
12.09 ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof. This
Agreement supersedes all prior or contemporaneous representations, discussions,
negotiations, letters, proposals, agreements and understandings between the
parties hereto with respect to the subject matter hereof, whether written or
oral. This Agreement may be amended, modified or supplemented only by a written
instrument duly executed by an authorized representative of each of the parties.
12.10 SEVERABILITY. Any provision of this Agreement that is determined to be
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability in such jurisdiction, without rendering
invalid or unenforceable the remaining provisions of this Agreement or affecting
the validity or enforceability of such provision in any other jurisdiction. If a
court of competent jurisdiction declares any provision of this Agreement to be
invalid or unenforceable, the parties agree that the court making such
determination shall have the power to reduce the scope, duration, or area of the
provision, to delete specific words or phrases, or to replace the provision with
a provision that is valid and enforceable and that comes closest to expressing
the original intention of the parties, and this Agreement shall be enforceable
as so modified.
12.11 WAIVER. Any term or provision of this Agreement may be waived at any time
by the party entitled to the benefit thereof by written instrument executed by
such party. No failure of either party hereto to exercise any power or right
granted hereunder, or to insist upon strict compliance with any obligation
hereunder, and no custom or practice of the parties with regard to the terms of
performance hereof, will constitute a waiver of the rights of such party to
demand full and exact compliance with the terms of this Agreement.
12.12 RESERVED.
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FUNDS SERVICES
[GRAPHIC OMITTED]
12.13 ACCOUNTS AND RECORDS. The accounts and records maintained by the
Administrator shall be the property of the Company. The Administrator shall
prepare, maintain and preserve such accounts and records as required by the
1940 Act or as the Company otherwise reasonably directs. The Administrator
shall surrender such accounts and records to the Company, in the form in which
such accounts and records have been maintained or preserved, promptly upon
receipt of instructions from the Company. The Company shall have access to such
accounts and records at all times during the Administrator's normal business
hours; provided that the Company provides reasonable prior notice of such
desired access and such access does not interfere with the Administrator's
business operations. Upon the reasonable request of the Company, copies of any
such books and records shall be provided by the Administrator to the Company at
the Company's expense. The Administrator shall assist the Company, the
Company's independent auditors, or any regulatory body, in any requested review
of the Company's accounts, records and reports prepared by the Administrator,
including any requests for information concerning the Administrator's
accounting system and internal controls.
12.14 BUSINESS INTERRUPTION PLAN. The Administrator shall maintain in effect a
business interruption plan, and enter into any agreements necessary with
appropriate parties making reasonable provisions for emergency use of
electronic data processing equipment customary in the industry. In the event of
equipment failures, the Administrator shall, at no additional expense to the
Company, take commercially reasonable steps to minimize service interruptions.
12.15 FORCE MAJEURE. No breach of any obligation of a party to this Agreement
(other than obligations to pay amounts owed) will constitute an event of
default or breach to the extent it arises out of a cause, existing or future,
that is beyond the control and without negligence of the party otherwise
chargeable with breach or default, including without limitation: work action or
strike; lockout or other labor dispute; flood; war; riot; theft; act of
terrorism, earthquake or natural disaster. Either party desiring to rely upon
any of the foregoing as an excuse for default or breach will, when the cause
arises, give to the other party prompt notice of the facts which constitute
such cause; and, when the cause ceases to exist, give prompt notice thereof to
the other party.
12.16 EQUIPMENT FAILURES. In the event of equipment failures beyond the
Administrator's control, the Administrator shall take reasonable and prompt
steps to minimize service interruptions but shall have no liability with
respect thereto. The Administrator shall develop and maintain a plan for
recovery from equipment failures which may include contractual arrangements
with appropriate parties making reasonable provision for emergency use of
electronic data processing equipment to the extent appropriate equipment is
available.
12.17 NON-SOLICITATION. During the term of this Agreement and for a period of
one year thereafter, the Company shall not solicit, make an offer of employment
to, hire, or enter into a consulting relationship with, any person who was an
employee of the Administrator during the term of this Agreement. If the Company
breaches this provision, the Company shall pay to the Administrator liquidated
damages equal to 100% of the most recent twelve month salary of the
Administrator's former employee together with all legal fees reasonably
incurred by the Administrator in enforcing this provision. The foregoing
restriction on solicitation does not apply to unsolicited applications for
jobs, responses to public advertisements or candidates submitted by recruiting
firms, provided that such firms have not been contacted to circumvent the
spirit and intention of this SECTION 12.15.
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FUNDS SERVICES
[GRAPHIC OMITTED]
12.18 HEADINGS. All SECTION headings contained in this Agreement are for
convenience of reference only, do not form a part of this Agreement and will
not affect in any way the meaning or interpretation of this Agreement.
12.19 COUNTERPARTS. This Agreement may be executed in two or more counterparts,
all of which shall constitute one and the same instrument. Each such
counterpart shall be deemed an original, and it shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart. This Agreement shall be deemed executed by both parties when any
one or more counterparts hereof or thereof, individually or taken together,
bears the original facsimile or scanned signatures of each of the parties.
12.20 PUBLICITY. Except to the extent required by applicable Law, neither the
Administrator nor the Company shall issue or initiate any press release arising
out of or in connection with this Agreement or the Services rendered hereunder;
PROVIDED, HOWEVER, that if no special prominence is given or particular
reference made to the Investment Manager over other clients, nothing herein
shall prevent the Administrator from (i) placing the Investment Manager's name
and/or company logo(s) (including any registered trademark or service xxxx) on
the Administrator's client list(s) (and sharing such list(s) with current or
potential clients of the Administrator) and/or marketing material which will
include such entities' name, logo and those services provided to the Investment
Manager by the Administrator; or (ii) otherwise orally disclosing that
Investment Manager is a client of the Administrator at presentations,
conferences or other similar meetings, provided that, in each case, the
Administrator obtains the prior written consent of the Investment Manager, not
to be unreasonably withheld. If either party desires to engage in any type of
publicity, the party desiring to engage in such publicity shall obtain the
prior written consent of the other party hereto.
12.21 INSURANCE. Each party hereto shall maintain appropriate insurance
coverage with respect to such party's responsibilities hereunder; provided,
however, that the amount of insurance coverage shall in no way affect a party's
obligations or liability as otherwise set forth in this Agreement. Without
limiting the foregoing, in the event that the Administrator makes an employee
of the Administrator available to the Company to serve as an officer of the
Company, the Company shall maintain professional liability (directors' &
officers' and errors and omissions) insurance with limits of not less than $5
Million per occurrence ("OFFICER INSURANCE MINIMUM"). The Company shall provide
a certificate of insurance to the Administrator prior to Administrator
providing Services to the Company and annually thereafter upon Administrator's
request. Such certificate of insurance shall contain an agreement by the
issuing insurance company that such insurance shall not be materially changed,
cancelled or terminated upon less than thirty days prior written notice to
Administrator. Directors' & officers' insurance shall be acquired only through
insurance companies having an A.M. Best rating of A- VIII or better. The
Company agrees that any losses incurred as a result of the actions of any
officer or director of the Company for which recovery can be obtained from the
Company's D&O Liability Insurance will be made solely against such policies and
not against policies maintained by the Administrator or any other party. In
connection with the foregoing, the Company further releases, assigns and waives
any and all rights of recovery against the Administrator and its employees,
successors and permitted assigns that the Company may otherwise have or acquire
in or from, or are in any way connected with any loss covered by the Company's
D&O Liability Insurance or because of deductible clauses in or inadequacy of
limits of such policy of insurance. The Company shall promptly notify the
Administrator should its insurance coverage with respect to professional
liability be cancelled or fall below the Officer Insurance Minimum, such
notification to include the date of cancellation, if applicable.
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FUNDS SERVICES
[GRAPHIC OMITTED]
12.22 INTELLECTUAL PROPERTY. Any interest in patents, patent applications,
inventions, technological innovations, trade names, trademarks, service marks,
copyrights, copyrightable works, developments, discoveries, designs, processes,
formulas, concepts, know-how, trade secrets, data and analysis, and other
intellectual property, whether registerable or not ("Intellectual Property
Rights") owned by either party prior to the date of this Agreement, and all
modifications, revisions, changes, copies, partial copies, translations,
compilations, partial copies and derivative works therefrom shall remain the
sole and exclusive property of such party. Except as specifically set forth
herein, no license or conveyance of any such Intellectual Property Rights to
the other party hereto is granted or implied under this Agreement.
[The remainder of this page has intentionally been left blank.]
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL
FUNDS SERVICES
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the Effective Date.
ADMINISTRATOR: COMPANY:
SEI INVESTMENTS GLOBAL FUNDS SERVICES X'XXXXXX EQUUS
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------- -------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx Xxxxxxx
Title: CEO and President Title: Vice President
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FUNDS SERVICES
[GRAPHIC OMITTED]
SCHEDULE I
LIST OF SERVICES
I. PORTFOLIO ACCOUNTING SERVICES
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PORTFOLIO
ACCOUNTING ADMINISTRATOR SERVICES RESPONSIBILITY OF THE COMPANY OR ITS
SERVICES DELEGATE
------------------------------------------------------------------------------------------------------------------------------------
Trade Capture [] Set up and maintain securities in the [] Provide trade activity details in
Administrator's portfolio accounting electronic format, on a daily basis
system [] Notify the Administrator prior to
[] Pre-process trade files for automated any contemplated changes in the
trade processing, if applicable format, timing, delivery or content
[] Record trade activity in the portfolio of trade files
accounting system on a daily basis as [] Provide a daily operations contact
reported by the investment manager or person to whom the Administrator
sub-adviser should direct queries on trade
activity
------------------------------------------------------------------------------------------------------------------------------------
Income Accruals [] Calculate, accrue and verify interest and
amortization accruals for fixed income
instruments for each estimate or
valuation date
[] Update accounting system to reflect rate
changes on variable interest rate
instruments
------------------------------------------------------------------------------------------------------------------------------------
Receivables and [] Determine the outstanding receivables
Payables and payables for all (1) security trades,
(2) portfolio share transactions and (3)
income and expense accounts in
accordance with the budgets provided by
Company or its investment adviser;
------------------------------------------------------------------------------------------------------------------------------------
Corporate Action [] Independently apply corporate actions to [] Notify Administrator of non-
Activity securities held in the portfolio on a daily mandatory/voluntary corporate
Processing basis via standard 3(rd) party independent actions that should be submitted.
pricing agents, when available, for each
valuation date
[] Process mandatory/involuntary corporate
actions based upon data received from
market data provider(s), prime brokers,
and or custodians.
[] Process all non-mandatory asset
servicing events received from the
Investment Manager with prime brokers,
and or custodians.
------------------------------------------------------------------------------------------------------------------------------------
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FUNDS SERVICES
[GRAPHIC OMITTED]
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Reconciliation [] Reconcile OTC, portfolio cash and [] Authorize and ensure daily
security balances and activity between access or reporting for a Fund's
the Company's trading account(s) at trading account activity and
the prime broker/custodian and the balances at the prime
Administrator's portfolio accounting broker/custodian to the
system on a daily basis Administrator
[] Identify and label each reconciliation [] Ensure adequate and complete
break with its date of occurrence and transaction and balance
cause reporting details to the
[] Research and resolve reconciliation Administrator
breaks with the prime broker/custodian [] Provide an operations contact
and the Investment Manager person to whom the
[] Correct breaks identified during the Administrator should direct
reconciliation process in the queries on reconciliation issues
Administrator's portfolio accounting Notify the Administrator in
system advance of new trading accounts
or changes to an existing trading
[] Reconcile fund level capital activity account
between the Administrator and
Transfer Agent
------------------------------------------------------------------------------------------------------------------------------------
Security [] Apply prices and foreign exchange [] Provide timely prices or other
Valuations rates to securities held in the portfolio changes to market value to the
via standard 3rd party independent Administrator for positions that
pricing agents in accordance with the are "committee based" for each
Company's pricing policy for each valuation date
valuation date [] Provide written backup and data
[] Apply prices to securities held in the inputs to support the valuation of
portfolio provided by the Company's "committee based" securities for
pricing committee in accordance with each valuation date.
the Company's pricing policy for each [] Review and provide written
valuation date approval of portfolio positions &
[] Ensure pricing completeness for each prices for each valuation date in
valuation date accordance with the agreed
[] Perform agreed upon monthly pricing upon timeline
controls, analytics and procedures
[]
------------------------------------------------------------------------------------------------------------------------------------
Yields, Total [] Compute yields, total return, expense
Return, Expense ratios, portfolio turnover rate and average
Ratios, Turnover, dollar-weighted portfolio maturity, as
Average Dollar- appropriate;
weighted Maturity
------------------------------------------------------------------------------------------------------------------------------------
P&L reporting [] GENERATE DAILY PROFIT AND LOSS BY
SECURITY AND PERFORM REASONABLENESS
REVIEWS AND ANALYTICS
[] PROVIDE DAILY PROFIT AND LOSS REPORTING
AT THE SECURITY, ACCOUNT AND GROUP
LEVEL, INCLUDING STRATEGY MAPPINGS
[] PROVIDE DAILY TAX LOT REPORTS
------------------------------------------------------------------------------------------------------------------------------------
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FUNDS SERVICES
[GRAPHIC OMITTED]
II. FUND ACCOUNTING SERVICES
------------------------------------------------------------------------------------------------------------------------------------
FUND
ACCOUNTING ADMINISTRATOR SERVICES RESPONSIBILITY OF THE COMPANY OR ITS
SERVICES DELEGATE
------------------------------------------------------------------------------------------------------------------------------------
Accounting books [] Maintain the Company's accounting [] Adopt accounting policies of the
and records books and records Company in connection with the
Administrator, independent
[] Consult with Company officers, accountants, legal counsel and
independent accountants, legal counsel, other service providers
and other service providers in
establishing accounting policies of the [] Provide the Administrator a current
Company copy of its accounting policies
promptly upon the adoption of any
changes
------------------------------------------------------------------------------------------------------------------------------------
Income and [] Track and validate income and expense
Expenses accruals, analyze and modify expense
accrual changes periodically, and
process expense disbursements to
vendors and service providers;
------------------------------------------------------------------------------------------------------------------------------------
Income and [] Prepare and provide monthly allocations
Expenses of income and expenses, and calculation
of management and performance fees by
class.
------------------------------------------------------------------------------------------------------------------------------------
Expenses [] Accrue expenses of the Company [] Review and approve annual
according to instructions received from expense budget. Review and
the Company's treasurer or other approve proposed changes to the
authorized representative (including expense budget accruals, as
officers of the Company's investment deemed necessary.
adviser);
[] Prepare for review by designated
Company officers annual expense
budgets and other annual accounting
matters
------------------------------------------------------------------------------------------------------------------------------------
NAV Calculation [] Calculate the net asset value ("NAV") of
(Dealing NAV) a Fund and for each class and series of
shares outstanding and each investor
capital account, as applicable in
accordance with a Fund's legal operating
terms for each valuation date
------------------------------------------------------------------------------------------------------------------------------------
NAV Calculation [] Calculate the estimate net asset
(Weekly Estimate value ("NAV") for each class of the
NAV) Fund, as applicable, with a Fund's
legal operating terms each week for
month-to-date performance
------------------------------------------------------------------------------------------------------------------------------------
Income and [] Calculate required ordinary income and
Capital Gains capital gains distributions, coordinate
Distributions estimated cash payments, and perform
necessary reconciliations with the
transfer agent;
------------------------------------------------------------------------------------------------------------------------------------
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL
FUNDS SERVICES
[GRAPHIC OMITTED]
III. REGULATORY AND COMPLIANCE SUPPORT SERVICES
REGULATORY AND RESPONSIBILITY OF THE COMPANY OR ITS
COMPLIANCE ADMINISTRATOR SERVICES DELEGATE
------------------------------------------------------------------------------------------------------------------------------------
SUPPORT
SERVICES
Financial [] Prepare the Company's financial [] Review Company's financial
Statements and statements for review by fund statements.
Regulatory management and independent auditors,
Reporting manage annual and semi-annual report
preparation process, prepare Forms N-
SAR, N-Q, N-CSR and N-PX, provide
fund performance data for annual report,
coordinate printing and delivery of annual
and semi-annual reports to shareholders,
and file Forms N-SAR, N-Q, N-CSR and
N-PX and annual/semi-annual reports via
XXXXX;
------------------------------------------------------------------------------------------------------------------------------------
Regulatory [] Provide consultation to the Company on [] Fully cooperate with request from
Matters regulatory matters relating to the government regulators.
operation of Company as requested and
coordinate with Company's legal counsel
regarding such matters;
------------------------------------------------------------------------------------------------------------------------------------
Regulatory [] Assist the Company in handling and
Examinations responding to routine regulatory
examinations with respect to records
retained or services provided by the
Administrator, and coordinate with
Company's legal counsel in responding
to any non-routine regulatory matters
with respect to such matters and
maintain applicable records required
under the Act;
[] Comply with SEC requests during
examinations
------------------------------------------------------------------------------------------------------------------------------------
State Registration [] Coordinate as necessary the registration [] Provide list of states for registration.
or qualification of shares of the Company
with appropriate state securities
authorities if applicable;
------------------------------------------------------------------------------------------------------------------------------------
Compliance [] On a T+1 post-trade basis and based on [] Primary day-to-day responsibility for
the information available to the assuring compliance, including on a
Administrator, periodically monitor the pre-trade basis.
portfolios of the Company for compliance
with applicable limitations as set forth in
the 1940 Act, the Company's then
current Prospectuses or Statements of
Additional Information (this provision
shall not relieve Company's investment
adviser and sub-advisers, if any, of their
------------------------------------------------------------------------------------------------------------------------------------
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FUNDS SERVICES
[GRAPHIC OMITTED]
------------------------------------------------------------------------------------------------------------------------------------
primary day-to-day responsibility for
assuring such compliance, including on
a pre-trade basis).
[] Maintain awareness of significant emerging
regulatory and legislative developments that
may affect the Fund, update Board on such
developments.
[] Prepare sub-certifications in connection with
the requirements of the Xxxxxxxx- Xxxxx Act of
2002 with respect to services provided by the
Administrator.
------------------------------------------------------------------------------------------------------------------------------------
[] Coordinate the tender protocol across all the
various service providers (printers, mailings,
transfer agent, distributor, sub-distributor,
investment manager, etc) and investors for the Fund
[] Prepare and monitor the tender protocol timeline
and delivery of tasks required each period.
[] Liaise and facilitate Board of Trustees approval
of the Tender amounts each period
[] Coordinate all the required communication and
filings of the tender
with the regulatory agencies and other services
providers and investors
------------------------------------------------------------------------------------------------------------------------------------
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL
FUNDS SERVICES
[GRAPHIC OMITTED]
IV. THIRD PARTY REPORTING SERVICES
------------------------------------------------------------------------------------------------------------------------------------
THIRD PARTY RESPONSIBILITY OF THE COMPANY OR ITS
REPORTING ADMINISTRATOR SERVICES DELEGATE
SERVICES
------------------------------------------------------------------------------------------------------------------------------------
Registration [] Provide performance, financial and [] Review Registration Statement and
Statements and expense information for registration Proxy statements. Provide
Proxies statements and proxies; information relating to the Adviser,
portfolio managers, investment
strategy and any other requested
information.
------------------------------------------------------------------------------------------------------------------------------------
Third Party [] Communicate periodic net asset value, [] Provide written instruction to the
Reporting yield, total return or other financial data Administrator in order to distribute
to appropriate third party reporting Company NAVs or other requested
agencies, and assist in resolution of financial information to a 3rd party.
errors reported by such third party
agencies;
------------------------------------------------------------------------------------------------------------------------------------
Additional [] Upon reasonable notice and as mutually
Reports agreed upon, the Administrator may
provide additional reports upon the
request of a Company or its investment
adviser, which may result in additional
charges, the amount of which shall be
agreed upon between the parties prior to
the provision of such report.
[] The Administrator in consultation with the
Advisor will furnish raw accounting data
relating to Portfolio Transaction for
purposes of Asset Coverage testing
[] The Administrator will provide reasonable
amounts of information via extract from
the Administrator's systems to assist the
Company in preparation of regulatory
and other compliance reports, upon
request
------------------------------------------------------------------------------------------------------------------------------------
V. ADMINISTRATION SERVICES
ADMINISTRATION RESPONSIBILITY OF THE COMPANY OR ITS
SERVICES ADMINISTRATOR SERVICES SERVICES
------------------------------------------------------------------------------------------------------------------------------------
Performance [] Provide performance reporting data to
Company and its adviser;
------------------------------------------------------------------------------------------------------------------------------------
Proxies [] Manage the Company's proxy solicitation [] Review Registration Statement
process, including evaluating proxy and Proxy statements. Provide
distribution channels, coordinating with information relating to the Adviser,
outside service provider to distribute portfolio managers, investment
proxies, track shareholder responses and strategy and any other requested
tabulate voting results, and managing the information.
proxy solicitation vendor if necessary;
------------------------------------------------------------------------------------------------------------------------------------
Company [] Provide individuals to serve as officers of [] Provide individuals to serve as
Officers the Company, as requested; officers of the Company, as
requested;
------------------------------------------------------------------------------------------------------------------------------------
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[GRAPHIC OMITTED]
------------------------------------------------------------------------------------------------------------------------------------
Accounting [] Provide principal accounting officer for
Officer purposes of Xxxxxxxx-Xxxxx and Section
32(b) of the 1940 Act;
------------------------------------------------------------------------------------------------------------------------------------
Registration [] Coordinate with the Company's counsel on [] Review Registration Statement
Statements and filing of the Company's registration and Proxy statements. Provide
Proxies statements and proxy statements, and information relating to the Adviser,
coordinate printing and delivery of portfolio managers, investment
Company's prospectuses and proxy strategy and any other requested
statements; information.
------------------------------------------------------------------------------------------------------------------------------------
Board Materials [] Provide such fund accounting and financial [] Provide the request for information
reports in connection with quarterly in a specified format and/or
meetings of the boards of trustees as the participation in a timely manner
boards of trustees may reasonably request; prior to such Board meeting
------------------------------------------------------------------------------------------------------------------------------------
Board Meetings [] Coordinate the Company's board of [] Attendance by representative of
trustees' schedule, agenda and production the Adviser in person is anticipated
of board of trustees meeting materials, and at least once a year, in connection
attend board of trustees meetings (if with the renewal of the advisory
requested); agreement.
[] Maintain general Board calendars
------------------------------------------------------------------------------------------------------------------------------------
Board Meetings [] Manage the preparation for and conducting [] Provide required documents (e.g.,
of board of trustees meetings and meetings adviser presentation, 15(c)
of committees thereof by (i) coordinating questionnaire responses, adviser
board of trustees/committee book compliance materials, etc.) for
production and distribution process, (ii) Board Meeting
subject to review and approval by the
Company and their counsel, preparing
meeting agendas, (iii) preparing the relevant
sections of the board of trustees/committee
meeting materials required to be prepared
by the Administrator, (iv) assisting to gather
and coordinate special materials related to
annual contract renewals and other
approvals for and as directed by the trustees
or the Company's legal counsel, (v)
attending board of trustees/committee
meetings, and (vi) performing such other
board of trustees/committee meeting
functions as shall be agreed by the parties
in writing (in this regard, the Company shall
provide the Administrator with notice of
regular meetings at least six (6) weeks
before such meeting and as soon as
practicable before any special meeting of
the board of trustees);
[] Coordinate with counsel to the Funds in
preparation, review and execution of
contracts between the Funds and third
parties, such as Funds' investment advisers,
sub-advisers, transfer agent, and custodian
and record-keepers or shareholder service
providers
------------------------------------------------------------------------------------------------------------------------------------
Shareholder [] Attend shareholder meetings and take and
Meetings prepare minutes
Policies and [] Assist legal counsel to the Company in the
Procedures development of policies and procedures
relating to the operation of the Company;
------------------------------------------------------------------------------------------------------------------------------------
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[GRAPHIC OMITTED]
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Legal [] Act as liaison to legal counsel to the
Company and, where applicable, to legal
counsel to Company's independent trustees;
------------------------------------------------------------------------------------------------------------------------------------
Company [] Provide consulting with respect to the [] Provide instructions with respect to
Structure ongoing design, development and operation the ongoing design, development
of the Company, including new Share and operation of the Company,
classes and/or load structures and including new Share classes
financing, as well as changes to investment and/or load structures and
objectives and policies for the existing financing, as well as changes to
Company; investment objectives and policies
for the existing Company;
------------------------------------------------------------------------------------------------------------------------------------
Additional [] Upon reasonable notice and as mutually
Services agreed upon, the Administrator may provide
such additional services with respect to a
Company, which may result in an additional
charge, the amount of which shall be agreed
upon between the parties prior to the
provision of such service.
------------------------------------------------------------------------------------------------------------------------------------
Business [] Maintain a business continuity and disaster
Continuity and recovery plan for the Administrator's
Disaster operations, systems hardware, software and
Recovery data
Services
------------------------------------------------------------------------------------------------------------------------------------
VI. AUDIT AND TAX SUPPORT SERVICES
------------------------------------------------------------------------------------------------------------------------------------
AUDIT AND TAX
SUPPORT ADMINISTRATOR SERVICES RESPONSIBILITY OF THE COMPANY OR ITS
SERVICES DELEGATE
------------------------------------------------------------------------------------------------------------------------------------
Subchapter M [] Daily monitoring of the Company's
compliance with the requirements of
Subchapter M of the Internal Revenue
Code with respect to status as a
regulated investment company*;
* THIS SERVICE IS UNDERSTOOD TO NOT BE A DAY 1
DELIVERABLE, BUT WILL BE IMPLEMENTED ON OR
BEFORE JULY 31, 2014
------------------------------------------------------------------------------------------------------------------------------------
Federal and State [] Prepare and file federal and state tax
Tax Returns returns for the Company other than those
required to be prepared and filed by the
Company's transfer agent or custodian.
------------------------------------------------------------------------------------------------------------------------------------
1099s [] Prepare for review by fund management [] Review and approve data for year-
and independent tax advisor data for end 1099's and supplemental tax
year-end 1099's and supplemental tax letters.
letters;
------------------------------------------------------------------------------------------------------------------------------------
Audit [] Cooperate with, and take all reasonable
actions in the performance of its duties
under this Agreement to ensure that all
necessary information is made available
to the independent public accountants of
------------------------------------------------------------------------------------------------------------------------------------
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FUNDS SERVICES
[GRAPHIC OMITTED]
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the Company in connection with the preparation of any
audit or report requested by Company, including the
provision of a conference room at the Administrator's
location if necessary (in this regard, Company's
independent auditors shall provide the Administrator
with reasonable notice of any such audit so that (i)
the audit will be completed in a timely fashion and
(ii) the Administrator will be able to promptly respond
to such information requests without undue disruption
of its business). [] Prepare for review and file any
required excise tax forms for the Company [] PROVIDE
STANDARD DATA EXTRACTS FROM THE ADMINISTRATOR'S
ACCOUNTING SYSTEMS TO A FUND'S AUDIT FIRM
------------------------------------------------------------------------------------------------------------------------------------
VII. ONLINE REPORTING SOLUTIONS
------------------------------------------------------------------------------------------------------------------------------------
SEI MANAGER ADMINISTRATOR SERVICES RESPONSIBILITY OF THE COMPANY OR ITS
------------------------------------------------------------------------------------------------------------------------------------
DASHBOARD DELEGATE
Implementation [] Aggregate and consolidate data from [] Provide users and their
source systems based upon service permissions to be set-up
levels of outsourcing agreement with [] Provide requirements for initial
SEI configuration
[] Provide web-based reporting to
investment managers for access to
fund, position, and transaction data
from source systems
[] Provide flexible reporting tool which
allows users to customize reports
[] Provide online document retrieval tool
via the SEI manager dashboard
[] Set up and configure investment
manager users and provide training
------------------------------------------------------------------------------------------------------------------------------------
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FUNDS SERVICES
[GRAPHIC OMITTED]
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Production [] Create and maintain users and [] Provide any ongoing user
entitlements on the website permission changes or new user
[] Maintain daily controls and setups
reconciliation of data loaded to the
data warehouse from the source
systems
------------------------------------------------------------------------------------------------------------------------------------
***
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL
FUNDS SERVICES
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SCHEDULE II
SCHEDULE OF FEES
ADMINISTRATION AND ACCOUNTING FEE:
The following fees are due and payable monthly to Administrator pursuant to
Section 8 of the Agreement. The Trust will be charged the greater of the Asset
Based Fee or the Annual Minimum Fee, in each case calculated in the manner set
forth below.
Asset Based Fees: (calculated and assessed monthly in arrears based on the
aggregate net assets of the Trust as of the prior month-end):
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TRUST ASSETS BASIS POINTS
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First $250 million in aggregate net assets 10.25
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Next $250 million in aggregate net assets 8.25
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Next $350 million in aggregate net assets 7
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Next $400 million in aggregate net assets 6
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Aggregate net assets in excess of $1.25 billion 5
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ANNUAL MINIMUM FEE (calculated and paid on a monthly basis):
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ANNUAL MINIMUM FEE
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Per Fund $ 150,000
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ADDITIONAL SHARE CLASSES:
$12,000 per annum per class
EXPENSE REIMBURSEMENT:
All reasonable expenses incurred by the Administrator on behalf of a Fund will
be billed to the applicable Fund quarterly in arrears as set forth in Section
7.02 of this Agreement.
TAX SERVICES:
Tax Services (1099's, etc) are not included in the above fee and will be
specifically addressed with the client upon completion of the offering
documents.
CHANGE OF TERMS:
This schedule is based upon regulatory requirements and Trust's requirements as
set forth in its Trust Materials as of the Effective Date. Any material change
to any of the foregoing, including but not limited to, a material change in
Trust's assets or the investment objective of a Portfolio will constitute a
material change to this Agreement. If such a change occurs, the Administrator
agrees to review the change with representatives of Trust and provide
information concerning the feasibility of implementing any additional or
enhanced services and associated costs resulting from such change. The parties
shall then in good faith agree to mutually agreeable terms applicable to such
additional or enhanced service.
Trust acknowledges and agrees that Administrator reserves the right to impose a
five percent (5%) per annum surcharge on a Fund basis against the Funds in the
event the Trust has not implemented by the first anniversary of this Agreement
an automated trade ticket process with Administrator to facilitate the orderly
and timely processing of Portfolio transactions, valuations and reconciliations.
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SCHEDULE III
NOTICE INSTRUCTION FORM
TO WHOM NOTICES SHOULD BE SENT PURSUANT TO SECTION 12.08 OF THE AGREEMENT:
Name of Party or Parties: ______________________________________________________
Name of Contact: ______________________________________________________
Address: ______________________________________________________
Telephone No.: ______________________________________________________
Facsimile No.: ______________________________________________________
Email Address: ______________________________________________________
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SCHEDULE V
FORM OF ADDITIONAL SERVICES SUPPLEMENT
This supplement (the "Supplement") hereby amends and supplements that certain
Administration Agreement (the "Administration Agreement") dated as of March 11,
2014 by and among SEI Global Services, Inc. (the "Administrator") and the funds
listed on Schedule II thereto (each, a "Fund"). Defined terms used herein but
not otherwise defined have the meanings given to them in the Administration
Agreement.
The following services (the "Additional Services") are hereby added to Schedule
II of the Administration Agreement and shall be performed by the Administrator
pursuant to the following terms and guidelines:
SERVICE TERMS AND DESCRIPTION OF SERVICE APPLICABLE FUND
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[Include service and terms thereof]
Such Additional Services shall be performed by the Administrator at the
following rate (the "Additional Service Fee"), which Additional Service Fee
shall supplement the list of fees set forth in Schedule III of the
Administration Agreement:
CHECK APPLICABLE BOX:
INCLUDED AS PART OF ORIGINAL FEE SCHEDULE SET FORTH IN SCHEDULE II: [ ]
ONE TIME COST OF: $[ ] [ ]
RECURRING ANNUAL COST OF: $[ ] [ ]
Very truly yours,
[COMPANY]
By: ________________________________
Name: ______________________________
Title: _____________________________
ACCEPTED AND AGREED TO:
SEI INVESTMENTS GLOBAL FUND SERVICES
By: ________________________________
Name: ______________________________
Title: _____________________________
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