9(e) Form of Administration Agreement to be between
Registrant and The Bank of New York.
ADMINISTRATION AGREEMENT
AGREEMENT made as of 1/30/96, by and between each entity listed
on Exhibit A hereto (each, a "Fund"; collectively, the "Funds"), and
The Bank of New York, a New York trust company (the "Administrator").
W I T N E S S E T H :
WHEREAS, each Fund is an investment company registered under
the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, each Fund desires to retain the Administrator to
provide administration services for the portfolios identified on
Exhibit A hereto (each, a "Series") and the Administrator is
willing to provide such services, all as more fully set forth
below;
NOW THEREFORE, in consideration of the mutual promises and
agreements contained herein, the parties hereby agree as follows:
1. Appointment.
Each Fund hereby appoints the Administrator as its agent for
the term of this Agreement to perform the services described
herein. The Administrator hereby accepts such appointment and
agrees to perform the duties hereinafter set forth.
2. Representations and Warranties.
Each Fund hereby represents and warrants to the
Administrator, which representations and warranties shall be
deemed to be continuing, that:
(a) It is duly organized and existing under the laws of
the jurisdiction of its organization, with full power to carry
on its business as now conducted, to enter into this Agreement
and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and
delivered by the Fund in accordance with all requisite action
and constitutes a valid and legally binding obligation of the
Fund, enforceable in accordance with its terms; and
(c) It is conducting its business in compliance with all
applicable laws and regulations, both state and federal, and has
obtained all regulatory licenses, approvals and consents
necessary to carry on its business as now conducted; there is no
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statute, regulation, rule, order or judgment binding on it and
no provision of its charter or by-laws, nor of any mortgage,
indenture, credit agreement or other contract binding on it or
affecting its property which would prohibit its execution or
performance of this Agreement.
3. Delivery of Documents.
(a) Each Fund will promptly deliver to the Administrator
true and correct copies of each of the following documents as
currently in effect and will promptly deliver to it all future
amendments and supplements thereto, if any:
(i) The Fund's articles of incorporation or other organizational
document and all amendments thereto (the "Charter");
(ii) The Fund's bylaws (the "Bylaws");
(iii) Resolutions of the Fund's board of directors or other
governing body (the "Board") authorizing the execution,
delivery and performance of this Agreement by the Fund;
(iv) The Fund's registration statement most recently filed
with the Securities and Exchange Commission (the "SEC")
relating to the shares of the Fund (the "Registration
Statement");
(v) The Fund's Notification of Registration under the 1940
Act on Form N-8A filed with the SEC; and
(vi) The Fund's Prospectus and Statement of Additional
Information pertaining to the Series (collectively, the
"Prospectus").
(b) Each copy of the Charter shall be certified by the
Secretary of State (or other appropriate official) of the state
of organization, and if the Charter is required by law also to be
filed with a county or other officer or official body, a
certificate of such filing shall be filed with a certified copy
submitted to the Administrator. Each copy of the Bylaws,
Resistration Statement and Prospectus, and all amendments
thereto, and copies of Board resolutions, shall be certified by
the Secretary or an Assistant Secretary of the appropriate Fund.
(c) It shall be the sole responsibility of each Fund to
deliver to the Administrator its currently effective Prospectus
and the Administrator shall not be deemed to have notice of any
information contained in such Prospectus until it is actually
received by the Administrator.
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4. Duties and Obligations of the Administrator.
(a) Subject to the direction and control of each Fund's Board and the
provisions of this Agreement, the Administrator shall provide to each Fund the
administrative services set forth on Schedule I attached hereto.
(b) In performing hereunder, the Administrator sha11 provide, at its
expense, office space, facilities, equipment and personnel.
(c) The Administrator shall not provide any services relating to the
management, investment advisory or sub-advisory functions of any Fund,
distribution of shares of any Fund, maintenance of any Fund's financial records
or other services norma11y performed by the Funds' respective counsel or
indecendent auditors.
(d) Upon receipt of a Fund's prior written consent (which xxxxx not be
unreasonably withheld), the Administrator may delegate any of its duties and
obligations hereunder to any delegee or agent whenever and on such terms and
conditions as it deems necessary or appropriate. Notwithstanding the foregoing,
no Fund consent shall be required for any such delegation to any other
subsidiary of The Bank of New York Company, Inc. The Administrator shall not be
liable to any Fund for any loss or damage arising out of, or in connection with,
the actions or omissions to act of any delegee or agent utilized hereunder so
long as the Administrator acts in good faith and without negligence or wilful
misconduct in the selection of such delegee or agent.
(e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal
counsel, independent accountants, current administrator (if any) and transfer
agent to cooperate with the Administrator and to provide the Administrator, upon
request, with such information, documents and advice relating to such Fund as is
within the possession or knowledge of such persons, in order to enable the
Administrator to perform its duties hereunder. In connection with its duties
hereunder, the Administor shall be entitled to rely, and shall be held harmless
by each Fund when acting in reliance, upon the instructions, advice or any
documents relating to such Fund provided to the Administrator by any of the
aforementioned persons. The Administrator shall not be liable for any loss,
damage or expense resulting from or arising out of the failure cf the Fund to
cause any information, documents or advice to be provided to the Administrator
as provided herein. All fees or costs charged by such persons shall be borne by
the appropriate Fund.
(f) Nothing in this Agreement shall limit or restrict the Administrator, any
affiliate of the Administrator or any officer
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or employee thereof from acting as administrator for or with any third parties.
(g) The Administrator may apply to an officer of any Fund for written
instructions with respect to any matter arising in connection with the
Administrator's performance hereunder for such Fund, and the Administrator shall
not be liable for any action taken or omitted to be taken by it in good faith in
accordance with such instructions. Such application for instructions may, at
the option of the Administrator, set forth in writing any action proposed to be
taken or omitted to be taken by the Administrator with respect to its duties or
obligations under this Agreement and the date on and/or after which such action
shall be taken, and the Administrator shall not be liable for any action taken
or omitted to be taken in accordance with a proposal included in any such
application on or after the date specified therein unless, prior to taking or
omitting to take any such action, the Administrator has received written
instructions in response to such application specifying the action to be taken
or omitted. The Administrator may consult with counsel to the appropriate Fund
or its own counsel, at such Fund's expense, and shall be fully protected with
respect to anything done or omitted by it in good faith in accordance with the
advice or opinion of such counsel.
(h) The Administrator shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement and Schedule I hereto, and no covenant or obligation shall be implied
against the Administrator in connection with this Agreement.
5. Allocation of Expenses.
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance of this Agreement shall be paid by
the appropriate Fund, including but not limited to, organizational costs and
costs of maintaining corporate existence, taxes, interest, brokerace fees and
commissions, insurance premiums, compensation and expenses of such Fund's
trustees, directors, officers or employees, legal accounting and audit expenses,
management, advisory sub-advisory, administration and shareholder servicing
fees, charges of custodians, transfer and dividend disbursing agents, expenses
(including clerical expenses) incident to the issuance, redemption or repurchase
of Fund shares, fees and expenses incident to the registration or qualification
under federal or state securities laws of the Fund or its shares, costs
(inclucding printing and mailing costs) of preparing and distributing
Prospectuses, reports, notices and proxy material to such Fund's shareholders,
all expenses incidental to holding meetings of such Fund's trustees, directors
and shareholders, and extraordinary expenses as may arise, including litigation
affecting such Fund
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and legal obligations relating thereto for which the Fund may
have to indemnify its trustees, directors and officers.
6. Standard of Care; Indemnification.
(a) Except as otherwise provided herein, the Administrator
shall not be liable for any costs, expenses, damages, liabilities
or claims (including attorneys' and accountants' fees) incurred
by a Fund, except those costs, expenses, damages, liabilities or
claims arising out of the Administrator's own bad faith, gross
negligence or wilful misconduct. In no event shall the
Administrator be liable to any Fund or any third party for
special, indirect or consequential damages, or lost profits or
loss of business, arising under or in connection with this
Agreement, even if previously informed of the possibility of such
damages and regardless of the form of action.
(b) Each Fund shall indemnify and hold harmless the
Administrator from and against any and all costs, expenses,
damages, liabilities and claims (including claims asserted by a
Fund), and reasonable attorneys' and accountants' fees relating
thereto, which are sustained or incurred or which may be asserted
against the Administrator, by reason of or as a result of any
action taken or omitted to be taken by the Administrator in good
faith hereunder or in reliance upon (i) any law, act, regulation
or interpretation of the same even though the same may thereafter
have been altered, changed, amended or repealed, (ii) such Fund's
Registration Statement or Prospectus, (iii) any instructions of
an officer of such Fund, or (iv) any opinion of legal counsel for
such Fund or the Administrator, or arising out of transactions or
other activities of such Fund which occurred prior to the
commencement of this Agreement; provided, that no Fund shall
indemnify the Administrator for costs, expenses, damages,
liabilities or claims arising out of the Administrator's own
gross negligence, bad faith or wilful misconduct. This indemnity
shall be a continuing obligation of each Fund, its successors and
assigns, notwithstanding the termination of this Agreement.
(c) Actions taken or omitted in reliance on oral or written
instructions, or upon any information, order, indenture, stock
certificate, power of attorney, assignment, affidavit or other
instrument believed by the Administrator to be genuine or bearing
the signature of a person or persons believed to be authorized to
sign, countersign or execute the same, or upon the opinion of
legal counsel for a Fund or its own counsel, shall be
conclusively presumed to have been taken or omitted in good
faith.
7. Compensation.
For the services provided hereunder, each Fund agrees to pay
the Administrator such compensation as is mutually agreed from
time to time and such out-of-pocket expenses (e.g.,
telecommunication charges, postage and delivery charges, record
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retention costs, reproduction charges and transportation and
lodging costs) as are incurred by the Administrator in performing
its duties hereunder. Except as hereinafter set forth,
compensation shall be calculated and accrued daily and paid
monthly. Each Fund authorizes the Administrator to debit such
Fund's custody account for all amounts due and payable hereunder.
The Administrator shall deliver to each Fund invoices for
services rendered after debiting such Fund's custody account with
an indication that payment has been made. Upon termination of
this Agreement before the end of any month, the compensation for
such part of a month shall be prorated according to the
proportion which such period bears to the full monthly period and
shall be payable upon the effective date of termination of this
Agreement. For the purpose of determining compensation payable
to the Administrator, each Fund's net asset value shall be
computed at the times and in the manner specified in the Fund's
Prospectus.
8. Term of Agreement.
(a) This Agreement shall continue until terminated by
either the Administrator giving to a Fund, or a Fund giving to
the Administrator, a notice in writing specifying the date of
such termination, which date shall be not less than 90 days after
the date of the giving of such notice. Upon termination hereof,
the affected Fund(s) shall pay to the Administrator such
compensation as may be due as of the date of such termination,
and shall reimburse the Administrator for any disbursements and
expenses made or incurred by the Administrator and payable or
reimbursable hereunder.
(b) Notwithstanding the foregoing, the Administrator may
terminate this Agreement upon 30 days prior written notice to a
Fund if such Fund shall terminate either its custody agreement or
fund accounting agreement with The Bank of New York, or fail to
perform its obligations hereunder in a material respect.
9. Amendment.
This Agreement may not be amended or modified in any manner
except by a written agreement executed by the Administrator and
the Fund to be bound thereby, and authorized or approved by such
Fund's Board.
1O. Assignment.
This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable
by any Fund without the written consent of the Administrator, or
by the Administrator without the written consent of the affected
Fund accompanied by the authorization or approval of such Fund's
Board.
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11. Governinq Law; Consent to Jurisdiction.
This Agreement shall be construed in accordance with the
laws of the State of New York, without regard to conflict of
laws principles thereof. Each Fund hereby consents to the
jurisdiction of a state or federal court situated in New York
City, New York, in connection with any dispute arising hereunder.
To the extent that in any jurisdiction any Fund may now or
hereafter be entitled to claim, for itself or its assets,
immunity from suit, execution, attachment (before or after
judgment) or other legal process, such Fund irrevocably agrees
not to claim, and it hereby waives, such immunity.
12. Severability.
In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdict on,
the validity, legality and enforceability of the remaining
provisions or obligations shall not in any way be affected or
impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable
to all other persons and circumstances.
13. No Waiver.
Each and every right granted to the Administrator hereunder
or under any other document delivered hereunder or in connection
herewith, or allowed it by law or equity, shall be cumulative
and may be exercised from time to time. No failure on the part
of the Administrator to exercise, and no delay in exercising,
any right will operate as a waiver thereof, nor will any single
or partial exercise by the Administrator of any right preclude
any other or future exercise thereof or the exercise of any
other right.
14. Notices.
All notices, reouests, consents and other communications
pursuant to this Agreement in writing shall be sent as follows:
if to a Fund, at
Milestone Capital Management LP
0 Xxxxx Xxxxx
Xxxxxxx, XX 00000 Attn Xxxxxxx X. Xxxxxx
if to the Administrator, at
The Bank of New York
00 Xxxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Vice President
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or at such other place as may from time to time be designated in
writing. Notices hereunder shall be effective upon receipt.
15. Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original;
but such counterparts together shall constitute only one
instrument.
16. Several Obligations.
The parties acknowledge that the obligations of the Funds
hereunder are several and not joint, that no Fund shall be liable
for any amount owing by another Fund and that the Funds have
executed one instrument for convenience only.
IN WITNESS WHEREOF, the parties hereto have caused the
foregoing instrument to be executed by their duly authorized
officers and their seals to be hereunto affixed, all as of the
day and year first above written.
By: /s/ Xxxxx X. Xxxxxx
-------------------------
on behalf of each Fund
identified on Exhibit A
attached hereto
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Grunston
-------------------------
Title: Vice President
EXHIBIT A
Name of Fund
THE MILESTONE FUNDS - TREASURY OBLIGATIONS PORTFOLIO
SCHEDULE I
Administrative Services
1. Maintain each Fund's minute book and its general
corporate records (other than accounting books and
records).
2. Monitor and document compliance by each Fund with its
policies and restrictions as delineated in its
Prospectus.
3. Participate in the periodic updating of each Fund's
Registration Statement and Prospectus and, subject to
approval by such Fund's Treasurer and legal counsel,
coordinate the preparation, filing, printing and
dissemination of periodic reports and other information
to the SEC and the Fund's shareholders, including
annual and semi-annual reports to shareholders, annual
and semi-annual Form N-SAR, notices pursuant to Rule
24(f)-2 and proxy materials.
4. Prepare federal, state and local income tax returns for
each Fund and Series and file such returns upon the
approval of the Funds' respective independent
accountants; monitor and report on Sub-Chapter M
qualifications; prepare and file all Form l099s with
respect to each Fund's directors or trustees; monitor
compliance with Section 4982 of the Internal Revenue
Code; calculate and maintain records pertaining to
Original Issue Discount and premium amortization as
required; perform ongoing wash sales review (i.e.,
purchases and sales of Fund investments within 30 days
of each other).
5. Prepare and, subject to approval of each Fund's
Treasurer, disseminate to such Fund's Board quarterly
unaudited financial statements and schedules of such
Fund's investments and make presentations to the Board,
as appropriate.
6. Subject to approval of each Fund's Board, assist such
Fund in obtaining fidelity bond and E&O/D&O insurance
coverage.
7. Prepare statistical reports for outside information
services (e.g., IBC/Xxxxxxxx, ICI and Lipper
Ana1ytical).
8. Attend shareholder and Board meetings as requested from
time to time.
9. Maintain expense files and coordinate the payment of
invoices.
