DEL REY GLOBAL INVESTORS FUNDS FUND ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT THE NORTHERN TRUST COMPANY
FUND ADMINISTRATION AND
ACCOUNTING SERVICES AGREEMENT
ACCOUNTING SERVICES AGREEMENT
THE NORTHERN TRUST COMPANY
TABLE OF CONTENTS
Section | Page | |||
1. APPOINTMENT |
1 | |||
2. REPRESENTATIONS AND WARRANTIES |
1 | |||
3. DELIVERY OF DOCUMENTS |
2 | |||
4. SERVICES PROVIDED |
3 | |||
5. FEES AND EXPENSES |
4 | |||
6. DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY |
5 | |||
7. ADDITIONAL COVENANTS. |
7 | |||
8. CONFIDENTIALITY |
9 | |||
9. NOTICES |
10 | |||
10. WAIVER |
11 | |||
11. FORCE MAJEURE |
11 | |||
12. USE OF NAME |
11 | |||
13. AMENDMENTS |
11 | |||
14. TERM |
11 | |||
15. SEVERABILITY |
12 | |||
16. ASSIGNABILITY |
12 | |||
17. HEADINGS |
12 | |||
18. GOVERNING LAW |
12 | |||
19. COUNTERPARTS |
13 | |||
20. ENTIRE AGREEMENT |
13 | |||
Schedule A — Series of del Rey Global Investors Funds |
A-1 | |||
Schedule B — Fees and Expenses |
B-1 | |||
Schedule C — Fund Administration Services Description |
C-1 | |||
Schedule D — Fund Accounting Services Description |
X-0 |
- 0 -
XXXX XXXXXXXXXXXXXX AND
ACCOUNTING SERVICES AGREEMENT
ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made and entered into by and between del Rey Global Investors Funds, a
statutory trust organized under the laws of the State of Delaware, having its principal office and
place of business at 0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000 (the “Trust”), on
behalf of each of its series listed in Schedule A hereto, as such Schedule A may be amended from
time to time in writing (each a “Fund” and collectively, the “Funds”), and The Northern Trust
Company (“Northern”), an Illinois company with its principal place of business at 00 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, as of the effective date listed in Schedule A corresponding to
each Fund.
WITNESSETH:
WHEREAS, the Trust is a Delaware statutory trust and is registered as an open-end, management
investment company under the Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, the Trust wishes to retain Northern to provide fund accounting and administration
services with respect to the Funds, and Northern is willing to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, it is
agreed between the parties hereto as follows:
1. APPOINTMENT. Each Fund, by execution of a separate signature page to this
Agreement, hereby appoints Northern to provide services for the Fund, as described
hereinafter, for the period and on the terms set forth in this Agreement. Northern accepts
such appointment and agrees to furnish the services herein set forth in return for the
compensation as provided in Section 5 and Schedule B to this Agreement.
2. REPRESENTATIONS AND WARRANTIES.
(a) Northern represents and warrants to each Fund that:
(i) Northern is a corporation, duly organized and existing, and in good standing under
the laws of the State of Illinois;
(ii) Northern is duly qualified to carry on its business in the State of Illinois;
(iii) Northern is empowered under applicable laws and by its Articles of Incorporation
and By-Laws to enter into and perform this Agreement;
(iv) All requisite corporate actions and proceedings have been taken to authorize
Northern to enter into and perform this Agreement;
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(v) Northern has, and will continue to have, access to the facilities, personnel and
equipment required to fully perform its duties and obligations under this Agreement;
(vi) No legal or administrative proceedings have been instituted or threatened which
would be reasonably likely to impair Northern’s ability to perform its duties and
obligations under this Agreement; and
(vii) Northern’s entrance into this Agreement shall not cause a material breach or be
in material conflict with any other agreement or obligation of Northern or any law or
regulation applicable to Northern.
(b) Each Fund represents and warrants to Northern that:
(i) The Trust is a statutory trust, duly organized and existing and in good standing
under the laws of Delaware;
(ii) The Trust is an investment company registered under the 1940 Act;
(iii) The Trust, on behalf of the Fund, has the power under applicable laws and by its
organizational documents to enter into and perform this Agreement;
(iv) All requisite actions have been taken to authorize the Trust on behalf of the Fund
to enter into and perform this Agreement;
(v) No legal or administrative proceedings have been instituted or threatened which
would be reasonably likely to impact the Fund’s ability to perform its duties and
obligations under this Agreement; and
(vi) The execution of this Agreement by the Trust, on behalf of the Fund, shall not
cause a material breach or be in material conflict with any other agreement or obligation of
the Fund or any law or regulation applicable to it.
3. DELIVERY OF DOCUMENTS. During the term of this Agreement, each Fund will promptly
furnish to Northern such copies, properly certified or authenticated, of contracts,
documents and other related information of the Fund within its possession that Northern
reasonably may request or require to properly discharge its duties and obligations under
this Agreement. Such documents may include but are not limited to the following:
(a) Actions of or on behalf of the Fund authorizing the appointment of Northern to
provide certain services to the Fund and approving this Agreement;
(b) The Trust’s governing documents, e.g., By-Laws, Trust Instrument, Operating
Agreement, etc.;
(c) The Trust’s currently effective registration statement under the Securities Act of
1933, as amended (the “1933 Act”), and the 1940 Act relating to the Fund (the “Registration
Statement”) and the Prospectus and Statement of Additional Information relating to the Fund
and all amendments and supplements thereto as in effect from time to time;
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(d) Auditors’ reports required to be filed with the Registration Statement; and
(e) Such other agreements, certificates and documents as the Fund may enter into from
time to time including securities lending agreements, futures and commodities account
agreements, brokerage agreements and options agreements, as may be necessary for Northern to
perform its duties and obligations under this Agreement.
4. SERVICES PROVIDED.
(a) With respect to each Fund, Northern will provide such of the following continuous
services as agreed with a Fund subject to the control, supervision and direction of the Fund
and the Board of Trustees to the Trust (the “Board”) and the review and comment by the
Fund’s auditors and legal counsel, and in accordance with procedures, if any, which may be
established from time to time between the Fund and the Northern, and all reasonable
resolutions and policies implemented by the Fund:
(i) Fund Administration services set out on Schedule C, and
(ii) Fund Accounting services set out on Schedule D.
(b) Northern will also, with respect to each Fund:
(i) Provide office facilities with respect to the provision of the services
contemplated herein (which may be in the offices of Northern or a corporate affiliate of
Northern);
(ii) Provide or otherwise obtain qualified personnel sufficient for provision of the
services contemplated herein;
(iii) Furnish equipment and other materials, which are necessary for provision of the
services contemplated herein; and
(iv) Maintain and keep all books, accounts and other records of each Fund that relate
to activities performed by or on behalf of Northern under this Agreement and, if required by
the 1940 Act, maintain and keep such books, accounts and records in accordance with the 1940
Act. In compliance with the requirements of Rule 31a-3 under the 1940 Act, Northern agrees
that all records which it maintains for each Fund shall at all times remain the property of
the Fund, shall be readily accessible during normal business hours, and shall be promptly
surrendered upon the termination of this Agreement or otherwise upon request. Northern
further agrees that all records which it maintains for each Fund pursuant to Rule 31a-1
under the 1940 Act will be preserved for the periods prescribed by Rule 31a-2 under the 1940
Act, unless any such records are earlier surrendered as provided above. Records shall be
surrendered in hard copy, computer disc or other accessible electronic format. Northern
shall not have the right to retain copies of such records without the Fund’s prior written
consent. Notwithstanding the foregoing, each Fund consents to Northern retaining copies of
such records that are stored in a central archival system as long as access to such system
is restricted to Northern’s officers, directors, employees, advisors and representatives
with a need to know the information contained therein; provided that such persons shall be
bound to treat such information confidential in accordance with the terms of this Agreement.
Any
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records retained by Northern shall be subject to observance of its confidentiality
obligations under this Agreement.
5. FEES AND EXPENSES.
(a) As compensation for the services rendered to a Fund pursuant to this Agreement, the
Fund shall cause to be paid to Northern the fees set out in Schedule B to this Agreement
with respect to such Fund in accordance with the terms of this Agreement. If fees begin to
accrue in the middle of a month or if this Agreement terminates before the end of any month,
all fees for the period from such mid-month date to the end of that month or from the
beginning of that month to the date of termination, as the case may be, shall be prorated
according to the proportion that the period bears to the full month in which the
effectiveness or termination occurs. Upon the termination of this Agreement, each Fund
shall pay to the Transfer Agent such compensation as shall be due and payable by such Fund
as of the effective date of termination.
(b) For the purpose of determining fees calculated as a function of a Fund’s assets,
the value of the Fund’s assets and net assets shall be computed as required by its
Prospectus, generally accepted accounting principles, and resolutions of the Board.
(c) Each Fund may request additional services, additional processing, or special
reports (“Additional Services”) which are not contemplated in this Agreement, and will
provide such specifications and requirements of said Additional Services, as Northern may
request for the purpose of evaluating the request for Additional Services. If Northern
elects to provide such Additional Services or arranges for such Additional Services to be
provided, it shall be entitled to additional fees and expenses at such customary rates and
charges as may be mutually agreed upon by the parties in writing.
(d) Northern will bear its own expenses in connection with the performance of the
services under this Agreement, except as provided herein or as agreed to by the parties in
writing in the fee schedule as amended from time to time. Each Fund agrees to reimburse
Northern for any equipment or supplies ordered by or for the Fund through Northern and for
any other expenses that Northern may reasonably incur on the Fund’s behalf, at the Fund’s
request or as consented to by the Fund in writing. Northern agrees to notify the Fund of any
such expenses that exceed $2,500 as soon as reasonably practical. In addition, Northern may
utilize one or more independent pricing services authorized and approved by a Fund in
writing to obtain securities prices and to act as backup to the primary pricing services
utilized by Northern in connection with determining the net asset values of the Fund. Each
Fund will reimburse Northern for its share of the cost of such services based upon the
actual usage by each Fund of the independent pricing services for the benefit of that Fund.
All fees, out-of-pocket expenses, or additional charges of Northern payable by a Fund under
this Section 5 and Schedule B shall be billed to the Fund on a quarterly basis and shall be
due and payable by the Fund within a reasonable period of time after receipt of the invoice
by the Fund; provided that no amounts under this Agreement shall be payable or begin to
accrue with respect to a Fund, until the earlier of (i) the closing of the Fund’s offering
or subscription period and (ii) the offering of the Fund’s shares to the public after the
effectiveness of its Registration Statement. If for any reason a Fund does not close the
offering of its shares after a subscription period or a Fund’s Registration Statement either
does not become
4
effective or the Fund does not offer and sell its shares to the public after its
Registration Statement becomes effective, no amounts under this Agreement, including fees,
out-of pocket expenses or additional charges of Northern, shall be accrued or payable by
such Fund, or the Trust with respect to such Fund, at any time.
(e) In the event that a Fund is more than one hundred twenty (120) days’ delinquent in
its payments of quarterly xxxxxxxx in connection with this Agreement (with the exception of
specific amounts which may be contested in good faith by the Fund), this Agreement may be
terminated with respect to such Fund upon thirty (30) days’ prior written notice to the Fund
by Northern. Each Fund must notify Northern in writing of any contested amounts within
sixty (60) days of receipt of an invoice for such amounts. Disputed amounts are not due and
payable while they are being contested.
6. DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY.
(a) Northern shall be responsible for the performance of only such duties, obligations
and services as are set forth in this Agreement. In the performance of its duties,
obligations and services hereunder, Northern shall be obligated, as applicable, to exercise
due care and diligence and act in good faith in the performance of its duties, obligations
and services called for in this Agreement, including the services referenced in Section 4 of
this Agreement and in all events shall act in good faith in performing the services provided
for under this Agreement and Schedules C and D hereto.
(b) Except as otherwise set forth in Section 6(d) hereof, Northern shall not be liable
for any error of judgment or mistake of law or for any loss or expense suffered by a Fund in
connection with the matters to which this Agreement relates, except for a loss or expense
caused by or resulting from willful misfeasance, willful default, willful misconduct, lack
of good faith, fraud, negligence or gross negligence on Northern’s part or the part of its
agents, delegates or employees, in the performance of or from reckless disregard by Northern
or its agents, delegates or employees of the obligations and duties specifically set forth
in this Agreement.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and
each Fund, severally but not jointly, shall indemnify and hold Northern harmless from and
against, any and all losses, damages, costs, reasonable attorneys’ fees and expenses,
payments, expenses and liabilities (“Losses”), except to the extent such Losses are caused
by or resulting from willful misfeasance, willful default, willful misconduct, lack of good
faith, fraud, negligence, gross negligence or reckless disregard on Northern’s part or the
part of its agents, delegates or employees, incurred by Northern in the performance of
its/their duties hereunder on behalf of the Fund, including but not limited to those arising
out of or attributable to:
(i) The reliance on or use by Northern or its officers of information, records, or
documents which are received by Northern or its officers and furnished to them by or at the
request of a Fund for use in connection with Northern’s provision of services under this
Agreement;
(ii) The Fund’s refusal or failure to comply with the material provisions of this
Agreement;
5
(iii) The breach of any material representation or warranty of the Trust on behalf of
the Fund;
(iv) The reliance on, or the carrying out, by Northern or its officers of any Proper
Instruction by an Authorized Person, each as defined below;
(v) Any delays of, inaccuracies or errors in, or omissions from, information or data
provided to Northern by data or pricing services or securities brokers or dealers;
(vi) The failure of the Fund to comply with applicable securities, tax, commodities and
other laws, rules and regulations, except to the extent such failure arises from Northern’s
failure to perform its duties and obligations under this Agreement;
(vii) Any failure of the Registration Statement relating to the Fund to comply with
applicable laws, or any untrue statement of a material fact or omission of a material fact
in such Registration Statement necessary to make the statements therein not materially
misleading, provided, however, that a Fund’s obligation to indemnify Northern shall not be
deemed to cover any such losses, damages, costs, attorneys’ fees and expenses, payments,
expenses and liabilities arising out of any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with information
relating to Northern and furnished to the Trust, the Fund or its counsel by Northern in
writing for inclusion in the Registration Statement.
(d) Northern shall indemnify and hold each Fund harmless from and against any and all
losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses
and liabilities arising out of or attributable to:
(i) Northern’s refusal or failure to comply with the material terms of this Agreement;
(ii) Northern’s breach of any material representation, warranty, covenant or
certification made by it herein; or
(iii) the willful misfeasance, willful default, willful misconduct, lack of good faith,
fraud, negligence or gross negligence on Northern’s part or the part of its agents,
delegates or employees, in the performance of, or from reckless disregard by Northern or its
agents, delegates or employees of, the duties and obligations specifically set forth in this
Agreement.
(e) In no event shall either Northern or the Fund be liable for any special, punitive
(except to the extent punitive damages are imposed due to the conduct of Northern) or
consequential damages of any kind whatsoever under any provision of this Agreement, even if
advised of the possibility thereof.
(f) The indemnifications contained hereunder shall survive the termination of this
Agreement.
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7. ADDITIONAL COVENANTS.
(a) In performing its services hereunder, Northern shall be entitled to rely on
instructions (which may be standing instructions) which it reasonably believes were received
by Northern from an Authorized Person, (i) in writing signed by the Authorized Person; or
(ii) by such other means as may be agreed upon in writing from time to time by Northern and
the party giving such instruction (“Proper Instructions”) from the Fund and any person
authorized by a Fund to give Proper Instructions on behalf of the Fund and in respect of
whom Northern has not received written notice from the Fund that such authorization has been
revoked (an “Authorized Person”). The Fund shall provide Northern with an incumbency
certificate specifying the names, specimen signatures and powers of all Authorized Persons
in respect of the Fund. Northern may rely upon the identity and authority of such persons
until it receives written notice from the Fund to the contrary.
(b) In connection with the performance of its duties and obligations under this
Agreement, Northern shall cooperate with all reasonable requests of the Fund and its
representatives related to the administration and monitoring of the Fund’s compliance
program pursuant to Rule 38a-1 under the 1940 Act.
(c) Upon request, Northern shall provide each Fund, at such times as each Fund may
request, its most recent SAS 70 report (or other applicable report) by independent public
accountants on the accounting system, internal accounting controls and procedures relating
to the services provided by the Northern under this Agreement; such reports, shall be of
sufficient scope and in sufficient detail, as may reasonably be required by the Fund to
provide reasonable assurance that any material inadequacies would be disclosed by such
examination, and, if there are no such inadequacies, the reports shall so state. Northern
shall retain an independent public accounting firm to prepare a SAS 70 report (or other
applicable report) at least annually and more frequently if deemed by Northern necessary or
desirable as a result of deficiencies in its internal controls.
(d) Northern understands and agrees that it is a “service provider” to the Trust, on
behalf of each Fund, as contemplated by Rule 38a-1 under the 1940 Act. As such, Northern
agrees to reasonably cooperate with the Trust, the Fund, and its Trustees and officers,
including the Trust’s Chief Compliance Officer (“CCO”), with respect to (i) any and all
compliance-related matters relating to Northern’s activities hereunder, and (ii) the efforts
of the Trust, on behalf of each Fund, to assure that each of its service providers adopts
and maintains policies and procedures that are reasonably designed to prevent violation of
the “federal securities laws”, as that term is defined by Rule 38a-1, by the Trust, the Fund
and its service providers. In this regard, Northern shall:
(i) submit to the Board for its consideration and approval, prior to commencement of a
Fund’s operations, Northern’s applicable compliance policies and procedures;
(ii) submit to the Board for its consideration and approval, annually (and at such
other times as the Trust, on behalf of a Fund, may reasonably request), a report (“Report”)
fully describing any material amendments to Northern’s
7
compliance policies and procedures since the more recent of: (1) the Board’s approval
of such policies and procedures or (2) the most recent Report;
(iii) provide periodic reports discussing Northern’s compliance program and special
reports on a timely basis in the event of material compliance matters and material changes
to the compliance program;
(iv) permit the Trust, on behalf of each Fund, and its Trustees and officers to become
familiar with Northern’s operations and understand those aspects of Northern’s operations
that may expose the Trust or the Fund to compliance risks or lead to a violation by the
Trust, the Fund or Northern of the federal securities laws;
(v) make its officers and employees available to employees of the Trust, the Fund or
their designees to answer questions relating to Northern’s provision of services under this
Agreement and Northern’s compliance with its operating policies and procedures, including
permitting the Trust, on behalf of each Fund, and its Trustees and officers to maintain an
active working relationship with Northern’s compliance personnel by, among other things,
providing the CCO and other officers with a specified individual within Northern’s
organization to discuss and address compliance-related matters;
(vi) provide the Trust, on behalf of each Fund, and its Trustees and CCO with such
certifications as may be reasonably requested by the Fund; and
(vii) reasonably cooperate with each Fund’s independent public accountants and shall
take all reasonable action in the performance of its duties and obligations under this
Agreement to assure that access to all reasonably necessary information and the appropriate
personnel are made available to such accountants, to support the expression of the
accountant’s opinion and their review of the appropriate internal controls and operations,
as such may be required from time to time.
(e) Upon request of a Fund, Northern shall provide such information and records in its
possession relating to the Fund that the Fund may require, and shall cooperate with the
Fund, in order for the Fund to respond to inquiries and requests for information by its
regulators.
(f) In the event of equipment failures beyond Northern’s control, Northern shall take
reasonable and prompt steps to minimize service interruptions to each Fund under this
Agreement. Northern 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.
(g) Northern hereby agrees to, subsequent to the date hereof, promptly notify the Trust
on behalf of each Fund if Northern determines that it is no longer able to perform the
services hereunder or that its ability to provide the services hereunder has been materially
impaired.
(h) Northern hereby agrees to, subsequent to the date hereof, promptly notify the Trust
on behalf of each Fund (i) if an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (a) liquidation, reorganization or other relief in respect
of Northern or its debts, or of a substantial part of
8
its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (b) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Northern or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall continue
undismissed and unstayed for a period of 60 or more days or an order or decree approving or
ordering any of the foregoing shall be entered, or (ii) if Northern shall (a) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (b) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause (i), (c) apply
for or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Northern or for a substantial part of its assets, (d)
file an answer admitting the material allegations of a petition filed against it in any
proceeding, (e) make a general assignment for the benefit of creditors or (f) take any
action for the purpose of effecting any of the foregoing (clauses (i) and (ii), each a
“Northern Bankruptcy Event”).
(i) Northern hereby agrees to provide to each Fund’s distributor in a timely and
accurate manner all such information that is in Northern’s possession (and in such
reasonable medium) that the Fund’s distributor may reasonably request that may be necessary
for such distributor to perform its duties for the Fund under the applicable distribution
agreement.
8. CONFIDENTIALITY.
(a) During the term of this Agreement, Northern and a Fund may have access to
confidential information relating to matters such as either party’s business, trade secrets,
systems, procedures, manuals, products, contracts, personnel, and clients. As used in this
Agreement, “Confidential Information” means information belonging to Northern or a Fund
which is of value to such party and the disclosure of which could result in a competitive or
other disadvantage to the non-disclosing party, including, without limitation, financial
information, business practices and policies, know-how, trade secrets, market or sales
information or plans, customer lists, business plans, and all provisions of this Agreement.
Confidential Information includes information developed by either party in the course of
engaging in the activities provided for in this Agreement, unless: (i) the information is or
becomes publicly known, of which the party receiving the information should reasonably be
aware, without breach of this Agreement, (ii) the information is disclosed to the other
party by a third party not under an obligation of confidentiality to the party whose
Confidential Information is at issue of which the party receiving the information should
reasonably be aware, or (iii) the information is independently developed by a party from
information received by a third party not under an obligation of confidentiality to the
party whose Confidential Information is at issue on a non-confidential basis of which the
party who developed the information should reasonably be aware. Each party will protect the
other’s Confidential Information with at least the same degree of care it uses with respect
to its own Confidential Information, and will not use the other party’s Confidential
Information other than in connection with its duties and obligations hereunder. Each party
hereby agrees not to disclose any Confidential Information other than to those of its
officers, directors, employees, advisors
9
and representatives (collectively, “Representatives”) with a need to know the
information contained therein and are under an obligation to maintain its confidentiality.
Each party hereby acknowledges that it may receive material non-public information regarding
securities in connection with this Agreement and agrees that it is aware, and that it will
advise its Representatives, that the United States securities laws prohibit any person who
has received material, non-public information concerning securities from purchasing or
selling the securities of any issuer, or from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities.
(b) Notwithstanding the foregoing, a party may disclose the other’s Confidential
Information if (i) required by law, regulation or legal process or if requested by any
regulatory agency with jurisdiction over Northern, the Trust or the Fund, as applicable;
(ii) it is advised by counsel that it may incur liability for failure to make such
disclosure; or (iii) requested to by the other party or (iv) necessary to perform the
services hereunder; provided that in the event of (i) or (ii) the disclosing party shall
give, to the extent permitted under applicable law, the other party reasonable prior notice
of such disclosure to the extent reasonably practicable and shall reasonably cooperate with
the other party (at such other party’s expense) in any efforts to prevent such disclosure.
(c) In the event of any unauthorized use or disclosure by a party of any Confidential
Information of the other party, the disclosing party shall promptly (i) notify the other
party of the unauthorized use or disclosure; (ii) take all reasonable actions to limit the
adverse effect on the other party of such unauthorized use or disclosure; and (iii) take all
reasonable action to protect against a recurrence of the unauthorized use or disclosure.
9. NOTICES. Any notice required or permitted hereunder shall be in writing and shall
be deemed effective on the date of personal delivery (by private messenger, courier service
or otherwise) or upon confirmed receipt of telex or facsimile, whichever occurs first, or
upon receipt if by mail to the parties at the following address (or such other address as a
party may specify by notice to the other):
If to the Trust:
del Rey Global Investors Funds
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
If to Northern:
The Northern Trust Company
00 XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Head of Global Funds Services Americas
Fax: 000-000-0000
00 XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Head of Global Funds Services Americas
Fax: 000-000-0000
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10. WAIVER. The failure of a party to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver nor shall it deprive such party
of the right thereafter to insist upon strict adherence to the term of any term of this
Agreement. Any waiver must be in writing signed by the waiving party.
11. FORCE MAJEURE. Subject to Section 7(f), Northern shall not be responsible or
liable for any harm, loss or damage suffered by a Fund, its shareholders, or other third
parties or for any failure or delay in performance of Northern’s duties, obligations or
services under this Agreement arising out of or caused, directly or indirectly, by
circumstances beyond Northern’s control. In the event of a force majeure, any harm, loss,
damage, failure or delay by Northern as a result of such force majeure will not give the
Fund the right to terminate this Agreement. Notwithstanding the foregoing, Northern shall
maintain a commercially reasonable business continuity plan designed to mitigate the impact
of any Force Majeure event and agrees to implement such plan upon the occurrence of a Force
Majeure event.
12. USE OF NAME. Northern will obtain the prior written consent of a Fund before using
the name of the Fund, the Trust, or any of their respective affiliates, or any of the Fund’s
materials in Northern’s materials.
13. AMENDMENTS. This contract is a separate contract with respect to each Fund. This
Agreement may be modified or amended with respect to a Fund from time to time by mutual
written agreement between Northern and such Fund. No provision of this Agreement may be
changed, discharged, or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, discharge or termination is sought.
14. TERM.
(a) This Agreement shall become effective with respect to each Fund listed on Schedule
A hereof as of the date specified on Schedule A. Unless sooner terminated as provided under
this Agreement, this Agreement shall continue in effect for three years from the date hereof
(the “Initial Term”). Thereafter, if not terminated, this Agreement shall continue
automatically in effect as to each Fund for successive one-year periods (each such
year-to-year renewal term a “Renewal Term”), provided such continuance is approved by the
Board of Trustees. Ninety (90) days before the expiration of the Initial Term or a Renewal
Term, the parties to this Agreement will agree upon a Fee Schedule for the upcoming Renewal
Term. Otherwise, the fee for any Renewal Term shall equal the fees then in place for the
Initial Term or the prior Renewal Term, as applicable.
(b) Notwithstanding the foregoing, this Agreement may be terminated, without the
payment of any penalty, with respect to a particular Fund (i) through a failure to renew
this Agreement at the end of the Initial Term or any Renewal Term or (ii) upon mutual
consent of the parties. Further, this Agreement may be terminated (x) in the event of a
Fund’s reasonable dissatisfaction with Northern’s services under this Agreement upon no less
than 60 days’ written notice by the Trust with respect to a Fund, provided, however, that in
such case the Fund shall give notice to Northern specifying the nature of
11
the dissatisfaction in sufficient detail to permit Northern to identify and attempt to
cure such dissatisfaction and if Northern fails to cure such dissatisfaction within 60 days
of receipt of such notice the Fund may terminate this Agreement immediately, (y) or upon
180 days’ prior written notice by Northern to the Fund. Dissatisfaction as used in this
paragraph must be in relation to the delivery of a service, or a component therof, as
contemplated by this Agreement and the dissatisfaction must be fact specific and measurable
by objective criteria. In the event that Northern gives notice of termination of this
Agreement with respect to a Fund, the Fund may, in its sole discretion, extend the term of
this Agreement by three calendar months following the date of termination if the Fund is
unable to find a successor administrator for such Fund by the date of termination in such
notice.
(c) Notwithstanding the foregoing, a Fund may terminate this Agreement at any time
without the payment of any penalty: (i) upon the breach of any section of this Agreement,
if such breach was caused by or was a result of willful misfeasance, willful default,
willful misconduct, lack of good faith, fraud, negligence or gross negligence on Northern’s
part or the part of its agents or employees, in the performance of, or from reckless
disregard by Northern or its agents or employees of, the duties and obligations specifically
set forth in this Agreement; (ii) if Northern (a) breaches any material provision of this
Agreement, or (b) is in default in the performance of its duties or obligations hereunder
and such default has, or may reasonably have, a material adverse effect on the Fund; or
(iii) upon the occurrence of a Northern Bankruptcy Event.
15. SEVERABILITY. If any provision of this Agreement is invalid or unenforceable, the
balance of the Agreement shall remain in effect, and if any provision is inapplicable to any
person or circumstance it shall nevertheless remain applicable to all other persons and
circumstances.
16. ASSIGNABILITY. This Agreement shall not be assigned by any of the parties hereto
without the prior written consent of the other party, except that Northern may, after
providing a Fund with ninety (90) days’ prior written notice, assign this Agreement with
respect to such Fund to a successor of all or a substantial portion of its business, or to a
party controlling, controlled by or under common control with Northern; provided, that the
Fund shall have the right to terminate this Agreement immediately rather than have such
successor assume Northern’s duties and obligations under this Agreement.
17. HEADINGS. All section headings contained in this Agreement are for convenience of
reference only, do not form a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
18. GOVERNING LAW. This Agreement shall be construed and the substantive provisions
hereof interpreted under and in accordance with the laws of the State of Illinois.
12
19. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
20. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties
and supersedes all prior agreements and understanding between the parties relating to the
subject matter hereof.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by a duly
authorized officer on one or more counterparts as of the effective date with respect to the del Rey
Monarch Fund as set out in Schedule A.
DEL REY GLOBAL INVESTORS FUNDS, on behalf of its series, DEL REY MONARCH FUND |
||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Chairman | |||
THE NORTHERN TRUST COMPANY |
||||
By: | /s/ Xxxxxx X. Xxxx | |||
Print Name: Xxxxxx X. Xxxx | ||||
Title: | Vice President | |||
14
SCHEDULE A
SERIES OF DEL REY GLOBAL INVESTORS FUNDS
SERIES OF DEL REY GLOBAL INVESTORS FUNDS
Fund | Effective Date of the Agreement | |
del Rey Monarch Fund
|
January 24, 2011 |
A-1
SCHEDULE C
FUND ADMINISTRATION SERVICES
FUND ADMINISTRATION SERVICES
Description of Fund Administration Services to be Provided on a Continuous Basis to each Fund:
1. | Maintain general Board calendars and regulatory filing calendars and ensure appropriate measures are put in place for changes; | ||
2. | Prepare production calendar setting forth all deliverables, dates, and responsible parties to ensure all filings and requirements are met, and ensure appropriate measures put in place for changes; | ||
3. | Prepare, update and file with the Securities and Exchange Commission (the “SEC”) all reports required to be filed by the Fund with the SEC, including the following documents: Form N-SAR, Form N-CSR, Form N-Q, and Form N-PX; | ||
4. | Work with the Fund and Fund counsel to prepare, update and file all amendments to the Registration Statement, including annual or other updates to the Prospectuses and SAIs for the Funds and any sticker supplements thereto, and coordinate the printing and distribution to shareholders of such documents; | ||
5. | Assist with drafting, coordinating, and filing registration statements (annually); circulate registration statements for review, finalize, EDGARize, and file after outside counsel’s review; | ||
6. | Prepare, update and file Rule 24f-2 notices, including coordination of payment; | ||
7. | Assist in the preparation and filing with the SEC of proxy statements; | ||
8. | Compile financial information required in a proxy if shareholder meetings are required; | ||
9. | Assist in the preparation of notices of annual or special meetings of shareholders; | ||
10. | Provide consultation on proxy solicitation matters; | ||
11. | Work with the Fund and Fund Counsel to review all XXXXX proofs and coordinate EDGARizing, filing, and printing; | ||
12. | Provide relevant procedural documentation and certifications for the Chief Compliance Officer of the Trust and 38a-1 requirements; | ||
13. | Advise and consult with the investment adviser to the Funds (the “Adviser”) on matters pertaining to new fund launches; | ||
14. | Provide appropriate personnel to attend Board and shareholder meetings, record and prepare minutes of such meetings and follow upon on deliverables or other issues; | ||
15. | Prepare and review with Fund counsel and senior management the agenda and resolutions for all requested Board and committee meetings, attend meetings as appropriate or requested, make presentations to the Board and committee meetings where appropriate, prepare minutes for Board and committee meetings; | ||
16. | Draft standard resolutions and circulate to Fund counsel; | ||
17. | Prepare board materials, including notice, agenda, memoranda, resolutions, financial and compliance reports and background material for legal approval at quarterly Board meetings; | ||
18. | Assemble and distribute Board packages to trustees and others; |
19. | Provide necessary financial data for board book material, as requested; | ||
20. | Maintain copies of the Trust’s Declaration of Trust and By-Laws; | ||
21. | Assist in maintaining corporate records, maintain master registration statements and comply with SEC requirements in case of examinations; | ||
22. | Assist in the handling of routine regulatory examinations of the Fund or Trust and work closely with the Fund’s legal counsel in response to any non-routine regulatory matters; | ||
23. | Assist in SEC requests for information, including preparation and coordination of certain materials, including materials requested by the SEC; | ||
24. | Coordinate with insurance providers, including solicitation of bids for Directors & Officers/Errors & Omissions insurance and fidelity bond coverage, assist in the acquisition of such insurance and bond coverage, monitor assets to assure adequate fidelity bond coverage is maintained and file fidelity bonds with the SEC pursuant to Rule 17g-1; | ||
25. | Monitor regulatory and legislative developments that may affect the Fund or the Trust, update the Board, the Fund and the Adviser on those developments; | ||
26. | Assist in oversight of blue sky administration; | ||
27. | Oversee the performance of blue sky services pursuant to the specific instructions of the trust’s officers; | ||
28. | Perform independent daily/weekly/monthly/quarterly compliance testing in support of SEC 1940 Act rules and diversification requirements, Fund prospectus and SAI requirements, IRS Regulated Investment Company qualification requirements, and any general investment guideline monitoring requested; | ||
29. | Monitor the Fund’s status as a regulated investment company under Sub-Chapter M of the Internal Revenue Code of 1986, as amended; | ||
30. | Provide periodic testing of the Fund’s requirements under the 1940 Act and limitations contained in the Registration Statements as may be mutually agreed upon, including compliance reporting to the designated Officer(s) of the Trust; | ||
31. | Prepare monthly or quarterly compliance reports to the Trust’s Chief Compliance Officer and reports for inclusion in quarterly Board books; | ||
32. | Prepare the Fund’s federal and state tax returns and extension requests for review by the Fund’s independent accountants and execution and filing by the Trust’s Treasurer, including Form 1120-RIC, Form 8613 and Form 1099-MISC (for Trustees and vendors); | ||
33. | Prepare federal excise tax returns and federal and state income tax returns; | ||
34. | Maintain records of wash losses and ongoing impact on the tax basis of investments; | ||
35. | Compute tax basis provisions for both excise and income tax purposes; | ||
36. | Calculate and review declaration of income distributions for income and excise tax distribution requirements; | ||
37. | Calculate and review declaration of capital gain distributions for income and excise tax distribution requirements; | ||
38. | Review and sign off on annual minimum distribution calculations (income and capital gain) prior to their declaration; | ||
39. | Provide information for year-end shareholder tax reporting; |
40. | Calculate Dividends Received Deduction for corporate shareholders; | ||
41. | Prepare all tax footnotes for financial statements; | ||
42. | Request and maintain Form W-9 for Trustees and vendors; | ||
43. | Prepare, mail and file Form 1099-Misc for Trustees and vendors; | ||
44. | Coordinate the audit of the Fund’s financial statements by the Fund’s independent accountants and provide office facilities for audits as necessary; | ||
45. | Prepare and assist with auditors’ supporting work papers, schedules and letters; | ||
46. | Assist with the preparation, filing, and printing (including coordinating with print vendors) of the annual and semi-annual shareholder reports and arrange for the distribution of such reports to shareholders; | ||
47. | Prepare and review semi-annual and annual financial statements; | ||
48. | Prepare schedule of investments for Form NQ; | ||
49. | Calculate daily Fund performance information, including after-tax returns, as required; | ||
50. | Provide customized total return reporting to the Adviser; | ||
51. | Oversee daily, weekly and monthly net asset value (“NAV”) and performance dissemination to reporting agencies; | ||
52. | Prepare and file monthly, quarterly and annual questionnaires with reporting agencies; | ||
53. | Distribute dividend and capital gain information to reporting agencies; | ||
54. | Assist in the dissemination of monthly and quarterly portfolio holdings to Morningstar, Lipper, Thomson and others; | ||
55. | Maintain certain books and records of the Trust as required under Rule 31a-1 of the 1940 Act, as may be mutually agreed upon; | ||
56. | Prepare for review by the designated Officer(s) of the Trust annual fund expense budgets, perform and review monthly expense accrual analyses and rollforward calculations and recommend changes to fund expense accruals on a periodic basis, arrange for payment of each Fund’s expenses and obtain authorization of accrual changes and expense payments; | ||
57. | Review invoices against contracts and coordinate payment with the Fund’s custodian; | ||
58. | Prepare check requests and forward for appropriate approval for payment; | ||
59. | Develop daily expense accrual factors to be used for daily NAV calculation; | ||
60. | Prepare and review adjusting and true-up entries; | ||
61. | Calculate expense ratios for monthly/quarterly reporting; | ||
62. | Prepare annual review of trustee fees; | ||
63. | Prepare trustee fee checks for Board members; | ||
64. | Prepare monthly expense reporting package for the Adviser | ||
65. | Prepare and furnish total return performance information for the Fund, including such information on an after-tax basis, calculate in accordance with applicable U.S. securities laws and regulations, as may be reasonably requested by Fund management; and | ||
66. | Provide sub-certifications in connection with the requirements of the Xxxxxxxx-Xxxxx Act of 2002 with respect to services provided by Northern. | ||
67. | Provide information to assist Fund in connection with Section 19 notices. |
SCHEDULE D
FUND ACCOUNTING SERVICES
FUND ACCOUNTING SERVICES
Description of Fund Accounting Services:
1. | Consult with the Trust’s officers, and the Fund’s independent accountants, legal counsel, custodian, fund accountant, distributor and transfer agent in establishing the accounting policies of the Fund; | ||
2. | Maintain the books and records for the Fund’s assets including records of all securities transactions; | ||
3. | Calculate the Fund’s net asset value per share utilizing prices obtained from mutually agreeable sources and transmitting valuation as required by the investment adviser to the Funds (the “Adviser”); | ||
4. | Execute security pricing in accordance with Fund’s pricing policy; | ||
5. | Reconcile positions, entitlements, accruals and cash with custody records and provide the Adviser with the beginning cash balance available for investment purposes; | ||
6. | Calculate monthly SEC yield and transmit information as required by the Adviser; | ||
7. | Verify investment buy/sell trade tickets when received from the Adviser; | ||
8. | Compute, as appropriate, and in consultation with the Fund’s auditors and tax advisors, the net income and capital gains and losses, dividend payables, dividend factors, yields and weighted average maturity; | ||
9. | Determine unrealized appreciation and depreciation on securities held by the Fund; | ||
10. | Amortize premiums and accrete discounts on securities purchased at a price other than face value, if requested by the Adviser; | ||
11. | Post Fund transactions to appropriate categories; | ||
12. | Accrue expenses as established in the expense budget of the Fund; | ||
13. | Determine the outstanding receivables and payables for all security trades, portfolio share transactions and income and expense accounts in accordance with the budgets provided by the Fund or the Adviser; | ||
14. | Coordinate with the Fund’s independent auditors and provide accounting reports in connection with the Fund’s regular annual audits and other routine audits and examinations by regulatory agencies and as otherwise reasonably requested by the Fund; | ||
15. | Maintain historical tax lots for each security held by the Fund; | ||
16. | Provide accounting for portfolio transactions, income, expenses, capital share and distribution activity within the Fund; | ||
17. | Update and report cash availability as required by the Adviser; and | ||
18. | Produce transaction data, financial reports and such other periodic and special reports that the Fund may reasonably request. |