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ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT (this "AGREEMENT") is made as of the 15(th)
day of January, 2016 (the "EFFECTIVE DATE"), by and between The Community
Development Fund, a Delaware trust (the "TRUST"), and SEI Investments Global
Funds Services, a statutory trust formed under the laws of the State of Delaware
(the "ADMINISTRATOR").
WHEREAS, Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 ACT"),
consisting of the series portfolios set forth in SCHEDULE I, attached hereto, as
the same may be amended from time to time ("PORTFOLIOS"), each of which may
consist of one or more classes of shares of beneficial interest ("SHARES"); and
WHEREAS, Trust desires the Administrator to provide, and the Administrator
is willing to provide, administrative and accounting services to such Portfolios
of Trust on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, Trust 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
of this Agreement.
1.04 "CONFIDENTIAL INFORMATION" shall have the meaning given to such term
in SECTION 11.01 of this Agreement.
1.05 "CONVERSION" means the processes and activities required to transfer
the books and records of Trust from the Trust or its prior
administrator, import the Trust'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.
1.06 "CONVERSION PLAN" shall have the meaning given to such term in
SECTION 2.05 of this Agreement.
1.07 "DISCLOSING PARTY" shall have the meaning given to such term in
SECTION 11.01 of this Agreement.
1.08 "GROSS NEGLIGENCE" means a conscious, voluntary act or omission in
reckless disregard of a legal duty and the rights of, or consequences
to, others, and not merely a lack of due care.
1.09 "INITIAL TERM" shall have the meaning given to such term in SECTION
9.01 of this Agreement.
1.10 "INTERESTED PARTY" or "INTERESTED PARTIES" means the Administrator,
its subsidiaries and its affiliates and each of their respective
officers, directors, employees, agents, delegates and associates.
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1.11 "INTERESTS" means any partnership interest in, membership interest
in, shares of stock of or other equity interest in, as the case may
be, the Trust.
1.12 "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 Trust.
1.13 "LIQUIDATION" shall have the meaning given to such term in SECTION
9.02.02 of this Agreement.
1.14 "LIVE DATE" means the date on which Trust is converted onto the
Administrator's system and the Administrator begins calculating
Trust's official net asset values ("NAV").
1.15 "ORGANIZATIONAL DOCUMENTS" means, as applicable, the articles of
incorporation, declaration of trust, 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 Trust.
1.16 "PERSON" shall mean any natural person, partnership, estate,
association, custodian, nominee, limited liability company,
corporation, trust or other legal entity.
1.17 "PRICING SOURCES" shall have the meaning given to such term in
SECTION 6 of this Agreement.
1.18 "PROPRIETARY INFORMATION" shall have the meaning given to such term
in SECTION 12.01 of this Agreement.
1.19 "PORTFOLIO" shall have the meaning given to such term in the preamble
of this Agreement.
1.20 "REASONABLE STEPS" shall have the meaning given to such term in
SECTION 11.01 of this Agreement.
1.21 "RECEIVING PARTY" shall have the meaning given to such term in
SECTION 11.01 of this Agreement.
1.22 "REGULATIONS" shall have the meaning given to such term in SECTION
12.12 of this Agreement.
1.23 "RENEWAL TERM" shall have the meaning given to such term in SECTION
9.01 of this Agreement.
1.24 "SHARES" shall have the meaning given to such term in the preamble of
this Agreement.
1.25 Unless the context otherwise requires and except as otherwise
specified in this Agreement, the term "TRUST" shall include, as
applicable, a trustee or trustees, or other Person having similar
status or performing similar functions, as the case may be, acting on
behalf of Trust.
1.26 "TRUST DATA" shall have the meaning given to such term in SECTION
2.04 of this Agreement.
1.27 "TRUST MATERIALS" means any prospectus, registration statement,
statement of additional information, proxy solicitation and tender
offer materials, annual or other periodic report of Trust or any
advertising, marketing, shareholder communication, or promotional
material generated by Trust or its investment adviser from time to
time, as appropriate, including all amendments or supplements thereto.
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1.28 "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. Trust hereby appoints the Administrator to be, and the
Administrator agrees to act as, the administrative agent of Trust for
the term and subject to the provisions hereof. The Administrator shall
perform (and may delegate or sub-contract, as provided below) the
services set forth in this Agreement, including the services set forth
in SCHEDULE II, which may be amended from time to time in writing by
the parties ("SERVICES"). In performing its duties under this
Agreement, the Administrator will act in all material respects in
accordance with the Trust's governing documents and Prospectus 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 Trust shall be
subject to the overall direction and control of Trust or any Person
authorized to act on Trust's behalf (including, without limitation,
Trust's sponsor and the board of trustees of Trust); 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 generally comply with the applicable prospectus, all applicable
resolutions and/or directives of Trust's board of trustees 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 a Fund
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, such Fund 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. 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 Trust and (ii) shall not provide any investment advisory
services to Trust, and shall have no liability related to the
foregoing.
2.03 THIRD PARTIES; AFFILIATES. The Administrator may 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, that reasonable advance notification has
been provided to Trust and all fees and expenses incurred in any
delegation or sub-contract shall be paid by the Administrator and the
Administrator shall remain responsible to Trust for the acts and
omissions of such other entities as if such acts or omissions were the
acts or omissions of the Administrator. Trust 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 TRUST DATA. Trust 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 Trust pursuant to
this Agreement (including, without limitation, (i) prices, (ii)
sufficient transaction supporting documentation, (iii) detailed
accounting methodologies with respect to Trust's Investments as
approved by Trust's auditors, (iv) the terms of any
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agreement between the Trust or its sponsor and an investor regarding
any special fee or specific fee arrangement or access to portfolio
information that may impact or affect the Services, and (v) trade and
settlement information from prime brokers and custodians)
(collectively, "TRUST DATA"). All Trust 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. Trust shall have an
ongoing obligation to promptly update all Trust Data so that such
information remains complete and accurate. All Trust Data shall be
prepared and maintained, by or on behalf of Trust, in accordance with
applicable law, the Trust Materials and generally acceptable
accounting principles. The Administrator shall be entitled to rely on
all Trust Data and shall have no liability for any loss, damage or
expense incurred by Trust or any other Person to the extent that such
loss, damage or expense arises out of or is related to Trust 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 Trust onto the Administrator's system.
SECTION 3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRUST
3.01 Trust 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
FUND.
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, or is likely to 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 compliance with all applicable laws and
regulations;
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3.01.06. it has a valid engagement with an independent auditor,
custodian and broker and will provide additional information
regarding such service providers, including information
regarding the terms of its agreement with such service
providers, upon request;
3.01.07. as of the close of business on the Effective Date, each
Portfolio that is in existence as of the Effective Date has
authorized the issuance of an indefinite number of shares
and has elected to register an indefinite number of shares
in accordance with Rule 24f-2 under the 1940 Act;
3.01.08. if necessary, any shareholder approval of this Agreement has
been obtained;
3.01.09. it has notified the Administrator of any and all separate
agreements between the Trust and any third party that could
have an impact on the Administrator performance of its
obligations pursuant to this Agreement; and
3.01.10. it has disclosed the terms of any agreement between the
Trust or its sponsor and an investor regarding any special
fee or specific fee arrangement or access to portfolio
information that may impact or affect the Services.
3.02 Trust 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 Trust's current Declaration of Trust
and of any amendments thereto, certified by the
proper official of the state in which such
document has been filed.
(2) Trust's current bylaws and any amendments thereto;
and
(3) Copies of resolutions of the trustees covering
the approval of this Agreement, authorization of a
specified officer of Trust to execute and deliver
this Agreement and authorization for specified
officers of Trust to instruct the Administrator.
(b) A list of all the officers of Trust, together with
specimen signatures of those officers who are
authorized to instruct the Administrator in all
matters.
(c) Copies of all Trust Materials, including the current
prospectus and statement of additional information for
each Portfolio.
(d) A list of all issuers the Portfolio's are restricted
from purchasing.
(e) A list of all affiliated persons (as such term is
defined in the 0000 Xxx) of Trust that are
broker-dealers.
(f) The identity of Trust's auditors along with contact
information.
(g) The expense budget for each Portfolio for the current
fiscal year.
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(h) A list of contact persons (primary, backup and
secondary backup) of Trust's investment adviser and, if
applicable, sub-adviser, who can be reached until 6:30
p.m. ET with respect to valuation matters.
(i) Copies of all Trust Data reasonably requested by the
Administrator or necessary for the Administrator to
perform its obligations pursuant to this Agreement.
Trust 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 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
Trust, including, without limitation, providing the
Administrator with all Trust 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
Trust 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 Trust Materials, 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 Trust
Materials, and applicable policies, laws and regulations
governing such Trust, its activities or the duties, actions
or omissions of the investment manager; and
3.02.07. it will promptly notify the Administrator of updates to its
representations and warranties hereunder.
SECTION 4 REPRESENTATIONS, WARRANTIES AND COVENANTS 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
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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.
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.
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 GROSS NEGLIGENCE (AS DEFINED
HEREIN), FRAUD OR CRIMINAL MISCONDUCT WHEN PROVIDING THE SERVICES, THE
ADMINISTRATOR'S AGGREGATE LIABILITY TO THE TRUST WILL BE LIMITED TO
MONETARY DAMAGES MUTUALLY AGREED UPON FROM TIME TO TIME IN A SEPARATE
WRITING EXECUTED BY THE PARTIES. 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 Trust or either of its respective agents to
perform its obligations under this Agreement or (ii) the
Administrator's reliance on Trust 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. NOTWITHSTANDING ANY
OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL
THE EITHER PARTY 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 A PARTY IS ADVISED OF THE
POSSIBILITY OF ANY SUCH DAMAGES.
5.02 The Administrator may, from time to time, provide to the Trust
services and products ("SPECIAL THIRD PARTY SERVICES") from external
third party sources that are telecommunication carriers, Pricing
Sources, data feed providers or other similar service providers
("SPECIAL THIRD PARTY VENDORS"). The Trust acknowledges and agrees
that the Special Third Party Services are confidential and proprietary
trade secrets of the Special Third Party Vendors. Accordingly, the
Trust 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 Trust place
copyright notices or other proprietary legends on printed matter,
print outs, tapes, disks, film or any other medium of dissemination.
The Trust further acknowledges and agrees that all Special Third Party
Services are provided on an "AS IS WITH ALL FAULTS" basis solely for
such Trust's internal use, and as an aid in connection with the
receipt of the Services. The Trust 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
Trust's investors, however the Trust shall not distribute any Special
Third Party Services to other third parties. THE SPECIAL THIRD PARTY
VENDORS AND THE ADMINISTRATOR
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MAKE 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. NEITHER THE ADMINISTRATOR NOR THE
SPECIAL THIRD PARTY VENDORS SHALL BE LIABLE FOR ANY DAMAGES SUFFERED
BY THE TRUST IN THE USE OF ANY OF THE SPECIAL THIRD PARTY SERVICES,
INCLUDING, WITHOUT LIMITATION, LIABILITY FOR ANY INCIDENTAL,
CONSEQUENTIAL OR SIMILAR DAMAGES.
5.03 Trust 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 Trust; 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 or
fraud in the performance of the Services; (ii) any violation by Trust
or Trust's sponsor of any applicable investment policy, law or
regulation, (iii) any misstatement or omission in the Trust Materials
or any Trust Data; (iv) any breach by Trust of any representation,
warranty or agreement contained in this Agreement; (v) any act or
omission of Trust, the Trust's former administrator, a Special Third
Party Vendor, the Trust's other service providers (such as custodians,
prime brokers, transfer agents, investment advisors and sub-advisers);
(vi) any pricing error caused by the failure of the Trust'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
with the Regulations, including, but not limited to, returning an
investor's Investment or restricting the payment of redemption
proceeds.
5.04 To the extent that a Fund receives Special Third Party Services from
Interactive Data Corporation ("IDC"), such Fund shall indemnify and
hold harmless IDC and its suppliers from any and all losses, damages,
liability, costs, including reasonable attorney's fees, resulting
directly or indirectly from any claim or demand against IDC by a third
party arising out of, derived from, or related to the accuracy or
completeness of any such Special Third Party Services received by a
Fund. IDC shall not be liable for any claim or demand against a Fund
by any third party.
5.05 The Administrator may apply to Trust, Trust's sponsor or any Person
acting on Trust's behalf at any time for instructions and may, subject
to the Trust's reasonable consent, not to be unreasonably withheld,
conditioned or delayed, consult counsel for Trust or Trust's sponsor
or with accountants, counsel and other experts with respect to any
matter arising in connection with the Administrator's duties
hereunder, and the Administrator shall not be liable or accountable
for any action taken or omitted by it in good faith in accordance with
such instruction or with the 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 the proper Person or Persons. The
Administrator shall not be held to have notice of any change of
authority of any officer, employee or agent of Trust until receipt of
written notice thereof. To the extent that the Administrator consults
with Trust counsel pursuant to this provision, any such expense shall
be borne by Trust.
5.06 The Administrator shall have no liability for its reliance on Trust
Data or the performance or omissions of unaffiliated third parties
such as, by way of example and not limitation,
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transfer agents, sub-transfer agents, custodians, prime brokers,
placement agents, third party marketers, asset data service providers,
investment advisers (including, without limitation, the Sponsor) 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. 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.
5.07 The Administrator shall have no obligations with respect to any laws
relating to the distribution, purchase or sale of Shares. Further,
Trust assumes full responsibility for the preparation, contents and
distribution of its Trust Materials and its compliance with any
applicable laws, rules, and regulations.
5.08 The indemnification rights afforded to Administrator 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 Trust is asked to indemnify or
hold the Administrator harmless, the Administrator shall promptly
advise Trust of the pertinent facts concerning the situation in
question and reasonable notification with respect to litigation
expenditures, and the Administrator will use all reasonable care to
identify and notify Trust 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 Trust 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 Trust elects to assume
the defense of any such claim, the defense shall be conducted by
counsel chosen by Trust and satisfactory to the Administrator, whose
approval shall not be unreasonably withheld. In the event that Trust
elects to assume the defense of any suit and retain counsel, the
Administrator shall bear the fees and expenses of any additional
counsel retained by it. If Trust does not elect to assume the defense
of a suit, it will advance to the Administrator the fees and expenses
of any counsel retained by the Administrator. 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 TRUST 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 Sponsor) an underlying fund in
which the Trust invests, if applicable, or any third-party pricing
services selected by the Administrator, the Trust's investment advisor
or the Trust (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 Trust's investment adviser or the
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applicable underlying fund. In the event that the Trust'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
Trust 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 Trust shall indemnify and defend the Administrator against
any loss, damages, costs, charges or reasonable counsel fees and
expenses in connection with any inaccuracy of such Valuation
Information. The Trust shall not use Valuation Information 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 furnish at its own expense
the personnel necessary to perform its obligations under this
Agreement.
7.02 PORTFOLIO EXPENSES. Trust assumes and shall pay or cause to be paid
all expenses of Trust 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, Trust Materials, proxy
solicitation and tender offer materials and notices to existing
shareholders; all expenses incurred in connection with issuing and
redeeming Shares; the costs of Pricing Sources; 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 custom programming or
systems modifications required to provide any reports or services
requested by Trust; any expense, if applicable, incurred to reprint
Trust documents identifying the Administrator (along with its address
and telephone number) as Trust'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 trustees; the
costs of trustees' meetings; insurance; interest; brokerage costs;
litigation and other extraordinary or nonrecurring expenses; and all
fees and charges of service providers to Trust. Trust 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; provided, however, that except with
respect to the costs of Pricing Sources, the Administrator shall
obtain the prior consent (not to be unreasonably withheld, conditioned
or delayed) of the Trust before incurring any other reimbursable
expense in excess of $2,500 per quarter.
SECTION 8 COMPENSATION
8.01 FEES. Trust 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
III and incorporated herein. Trust shall have no right of set-off. The
fees set forth herein are determined based on the characteristics of
the each Portfolio as of the Effective Date. Any material change to
the characteristics to a Portfolio may give rise to an adjustment to
the fees set forth in this Agreement. In the event of such a change,
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
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the fees within a reasonable period of time, the Administrator may
terminate this Agreement upon thirty days prior written notice to the
Trust. Trust shall pay the Administrator's fees monthly in U.S.
Dollars, unless otherwise agreed to by the parties. The Administrator
is hereby authorized to, and may, at its option, automatically debit
its fees due from the Trust's portfolio account(s). Trust shall pay
the foregoing fees despite the existence of any dispute among 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 effect shall be prorated in a
manner consistent with the calculation of the fees as set forth in
SCHEDULE III. Trust 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 month fee 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 ADJUSTMENT OF FEES. Trust acknowledges that from time to time after
the first anniversary of the Effective Date, Administrator may
increase all non-asset based Fees upon thirty days written notice to
the Trust, in an amount equal to the percentage increase in the
Consumer Price Index for All Urban Consumers (CPI-U) for
Philadelphia-Wilmington- Atlantic City (or a substantially equivalent
index if the foregoing is no longer available), since the Effective
Date with respect to the first such increase and since the date of the
immediately preceding increase with respect to all subsequent
increases; provided, however, that Administrator may not increase the
Fees more than one time during any twelve-month period.
Notwithstanding the above, in the event of an increase to
Administrator's costs for Special Third Party Services, Administrator
may at any time upon thirty days written notice increase the Fees
applicable to such Special Third Party Services, provided, that such
fee increase will not exceed the applicable percentage increase in
costs incurred by Administrator with respect to such Special Third
Party Services.
SECTION 9 DURATION AND TERMINATION
9.01 TERM AND RENEWAL. This Agreement shall become effective as of the
Effective Date and shall remain in effect for a period of three years
from and after the Live Date (the "INITIAL TERM"), and thereafter
shall automatically renew for successive three year terms (each such
period, a "RENEWAL TERM") unless terminated by any party giving
written notice of non-renewal at least one hundred eighty 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 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.
9.02.02. This Agreement may be terminated with respect to a
particular Fund by any party giving one hundred eighty days
prior notice in writing to the other parties prior to the
Liquidation (as hereinafter defined) of such Fund. For
purposes of this SECTION 9.02.02 , the term "Liquidation"
shall mean a
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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 such Fund of
its obligation to pay the fees set forth on SCHEDULE III for
the remainder of the one hundred eighty day period set forth
in this SECTION 9.02.02 , which amount shall be payable
prior to the effective date of such liquidation.
9.02.03. If the Administrator is unable to successfully convert
Trust to its operational environment within a reasonable
period of time following the Effective Date due to untimely,
inaccurate or incomplete Trust Data, the Administrator shall
have the right to terminate this Agreement, in its entirety
or solely with respect to such Portfolio, 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, acquisition, change in
control, re-structuring, reorganization or any other
decision involving the Trust or any affiliate (as defined in
the 0000 Xxx) of the Trust 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 fifth 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 Trust 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
deconverting Trust shall pay to the Administrator (1) all
fees and other costs as set forth in SCHEDULE III as if the
Administrator had continued providing Services until the
expiration of the then current term and calculated based
upon the assets of the deconverting Trust on the date notice
of termination in accordance with this Section was given and
(2) all fees and expenses previously waived by the
Administrator at any time during the term of the Agreement.
This Agreement shall terminate effective as of the
conclusion of the deconversion as set forth in this Section.
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 Trust, or
as it shall direct, all books of account, records,
registers, correspondence, documents and assets relating to
the affairs of or belonging to Trust 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
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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 Trust, 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 Trust, 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 shall continue in full force and
effect. The Administrator shall be entitled to collect from
Trust, in addition to the compensation described in SCHEDULE
III, 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 Trust and/or its designees of Trust's property, records,
instruments and documents.
SECTION 10 CONFLICTS OF INTEREST
10.01 NON-EXCLUSIVE. The services of the Administrator rendered to Trust
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 Trust
or Person acting on Trust'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 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;
10.02.02. 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 Trust;
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 Trust; 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 Trust or from
being interested in any such contract or transaction;
provided, however, that the terms of such transaction are
negotiated at arm's length.
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SECTION 11 CONFIDENTIALITY
11.01 CONFIDENTIAL INFORMATION. The Administrator and Trust (in such
capacity, the "RECEIVING PARTY") acknowledge and agree to maintain the
confidentiality of Confidential Information (as hereinafter defined)
provided by the Administrator and Trust (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 licensees of the Receiving
Party, or 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 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, provided, however,
that nothing herein shall limit the Administrator's ability to include
de-identified, anonymized data related to the Services hereunder for
the purpose of aggregating data and preparing reports regarding use
and functioning of the Service by the Administrator's various clients.
For the avoidance of doubt, such de-identified, anonymized data shall
not be included in the definition of "Confidential Information"
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; 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.
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 restriction at the time it is obtained
from the Disclosing Party, (b) is subsequently learned from an
independent third party free of any restriction 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
reference to or 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 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).
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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 Trust 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 Trust, 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 Trust 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"). Trust
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 Trust 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.
12.02 INDEPENDENT CONTRACTOR. In making, and performing under, this
Agreement, the Administrator shall be deemed to be acting as an
independent contractor of Trust and neither the Administrator nor its
employees shall be deemed an agent, affiliate, legal representative,
joint venturer or partner of Trust. No party is authorized to bind any
other party to any obligation, affirmation or commitment with respect
to any other Person.
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12.03 ASSIGNMENT; BINDING EFFECT. Trust may not assign, delegate or
transfer, by operation of law or otherwise, this Agreement (in whole
or in part), or any of Trust'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 TRUSTS. This
Agreement is for the sole and exclusive benefit of the Administrator
and Trusts and will not be deemed to be for the direct or indirect
benefit of either (i) the clients or customers of the Administrator or
Trust or (ii) the Sponsor. The clients or customers of the
Administrator or Trust 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 Commonwealth of
Pennsylvania 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
Commonwealth of Pennsylvania, 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 courts of the Commonwealth of Pennsylvania
or the United States District Courts for the Eastern District of
Pennsylvania 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 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.
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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) delivered personally, (b) sent by
commercial overnight courier with written verification of receipt, or
(c) 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 Trust shall be sent
to the persons specified in SCHEDULE IV.
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 ANTI-MONEY LAUNDERING LAWS. In connection with performing the
Services set forth herein, the Administrator may provide information
that Trust may rely upon in connection with Trust's compliance with
applicable laws, policies and Regulations aimed at the prevention and
detection of money laundering and/or terrorism activities
(hereinafter, the "REGULATIONS"). Trust and the Administrator agree
that Trust shall be responsible for its compliance with all such
Regulations. It shall be a condition precedent to providing Services
to Trust under this Agreement and the Administrator shall have no
liability for
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non-performance of its obligations under this Agreement unless it is
satisfied, in its absolute discretion, that it has sufficient and
appropriate information and material to discharge its obligations
under the Regulations, and that the performance of such obligations
will not violate any Regulations applicable to it. Without in any way
limiting the foregoing, Trust acknowledges that the Administrator is
authorized to return an investor's Investment in any Portfolio and
take any action necessary to restrict repayment of redemption proceeds
to the extent necessary to comply with its obligations pursuant to the
Regulations.
12.13 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.
12.14 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.
12.15 NON-SOLICITATION. During the term of this Agreement and for a period
of one year thereafter, the Trust shall not solicit, make an offer of
employment to, or enter into a consulting relationship with, any
person who was an employee of the Administrator during the term of
this Agreement. If Trust breaches this provision, Trust 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.
12.16 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.
12.17 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.
12.18 PUBLICITY. Except to the extent required by applicable Law, neither
the Administrator nor Trust 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 Trust over other clients,
nothing herein shall prevent the Administrator from (i) placing
Trust's or the Investment
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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 Trust by the
Administrator; (ii) using Trust as reference; or (iii) otherwise
orally disclosing that Trust is a client of the Administrator at
presentations, conferences or other similar meetings. Conversely,
nothing herein shall prevent the Trust or the Investment Manager from
(i) indicating that the Administrator provides administration and CFO
services to the Trust in Trust or Investment Manager marketing
material which may include the Administrator's name, logo and the
Administrator approved description of those services provided to the
Trust by the Administrator; (ii) using Administrator as reference; or
(iii) otherwise orally disclosing that the Trust is a client of the
Administrator at presentations, conferences or other similar meetings.
If the Administrator desires to engage in any type of publicity other
than as set forth in subsections (i) through (iii) above or if Trust
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, such consent not to be unreasonably withheld,
delayed or conditioned.
12.19 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 Trust to serve as an officer of the Trust, the Trust shall
maintain professional liability (directors' & officers' and errors and
omissions) insurance with limits of not less than $3 Million per
occurrence; provided, however, that the Trust shall only be required
to maintain professional liability (directors' & officers' and errors
and omissions) insurance with limits of not less than $1 Million per
occurrence until such time as the Trust's net asset value exceeds $500
Million ("OFFICER INSURANCE MINIMUM"). The Trust shall provide a
certificate of insurance to the Administrator prior to Administrator
providing Services to the Fund 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 trust further
releases, assigns and waives any and all rights of recovery against
the Administrator and its employees, successors and permitted assigns
that the Trust may otherwise have or acquire in or from, or are in any
way connected with any loss covered by the Fund's D&O Liability
Insurance or because of deductible clauses in or inadequacy of limits
of such policy of insurance. The Trust 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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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the Effective Date.
ADMINISTRATOR: TRUST:
SEI INVESTMENTS GLOBAL FUNDS SERVICES COMMUNITY DEVELOPMENT TRUST
By: /S/ XXXX XXXXXXXXX By: /S/ XXXXXXX X. XXXXXX
------------------ ----------------------
Name: Xxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: SVP Title: President
The Community Development Fund
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SCHEDULE I
PORTFOLIOS
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SCHEDULE II
LIST OF SERVICES
[REDACTED]
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SCHEDULE III
SCHEDULE OF FEES
[Redacted]
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SCHEDULE IV
NOTICE INSTRUCTION FORM
TO WHOM NOTICES SHOULD BE SENT PURSUANT TO SECTION 12.08 OF THE AGREEMENT:
Name of Party or Parties:
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Name of Contact:
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Address:
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Telephone No.:
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Facsimile No.:
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Email Address:
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