ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT (this "Agreement") is made as of the
1st day of September, 2015 (the "Effective Date"), by and between Xxxxxx
Diversified Opportunities Fund, a Delaware statutory Trust (the "TRUST"), Xxxxxx
Diversified Opportunities Fund Ltd., a wholly owned subsidiary organized under
the laws of the Cayman Islands (the "SUBSIDIARY") which Subsidiary shall be
included within the definition of the Trust for all purposes hereunder as
applicable, Xxxxxx Capital US LLC, a limited liability company organized under
the laws of Delaware (the "INVESTMENT ADVISER") and SEI Investments Global Funds
Services, a statutory trust formed under the laws of the State of Delaware (the
"ADMINISTRATOR").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 ACT"), as a closed-end, diversified management
investment company, which may consist of one or more classes of shares of
beneficial interest ("SHARES");
WHEREAS, the Investment Adviser serves as investment adviser to each
of the Trust and the Subsidiary; and
the Trust desires the Administrator to provide, and the Administrator
is willing to provide, administrative and accounting services to the Trust on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the 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 "ACTIONS" shall have the meaning given to such term in Section
3.01.02.
1.03 "ADMINISTRATOR" shall have the meaning given to such term in the
preamble of this Agreement.
1.04 "AGREEMENT" shall have the meaning given to such term in the preamble
of this Agreement.
1.05 "BOARD" means board of trustees of the Trust from time to time.
1.06 "CONFIDENTIAL INFORMATION" shall have the meaning given to such term
in Section 11.01 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 the 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 the Trust is launched onto the
Administrator's system and the Administrator begins calculating the 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 "REASONABLE STEPS" shall have the meaning given to such term in
Section 11.01 of this Agreement.
1.20 "RECEIVING PARTY" shall have the meaning given to such term in Section
11.01 of this Agreement.
1.21 "REGULATIONS" shall have the meaning given to such term in Section
12.12 of this Agreement.
1.22 "RENEWAL TERM" shall have the meaning given to such term in Section
9.01 of this Agreement.
1.23 "SHARES" shall have the meaning given to such term in the preamble of
this Agreement.
1.24 "TRUST DATA" shall have the meaning given to such term in Section 2.04
of this Agreement.
1.25 "TRUST MATERIALS" means any prospectus, registration statement,
statement of additional information, proxy solicitation and tender offer
materials, annual or other periodic report of the Trust or any advertising,
marketing, shareholder communication, or promotional material generated by
the Trust or the Investment Adviser from time to time, as appropriate,
including all amendments or supplements thereto.
1.26 "WEB ACCESS" shall have the meaning given to such term in Section
12.01 of this Agreement.
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SECTION 2 APPOINTMENT AND CONTROL
2.01 SERVICES. The Trust hereby appoints the Administrator to be, and the
Administrator agrees to act as, the administrative agent of the 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
I, 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 with the professional care and skill that would
reasonably be expected of a professional administrator and in all material
respects in accordance with the Trust's Organizational Documents and Trust
Materials 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 the Trust or any Person authorized to
act on the Trust's behalf (including, without limitation, the Board);
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 Trust Materials, all applicable resolutions
and/or directives of the Board of which it has notice, and applicable laws
and regulations which may from time to time apply to the Services rendered
by the Administrator. In the event that the Trust desires to amend its
Organizational Documents in any manner that can reasonably be expected to
have a material impact on the Administrator's performance of the Services
hereunder, the Trust 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 the Trust and (ii) shall not provide any investment advisory
services to the 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 the Administrator procures that each such delegate or
sub-contractor shall agree to abide by confidentiality obligations which
are substantively similar to the confidentiality obligations as set forth
herein, 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 the Trust for the acts and omissions of such other
entities as if such acts or omissions were the acts or omissions of the
Administrator. The 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. The Administrator
agrees to monitor the performance of each delegate and sub- contractor on
an ongoing basis and to review each delegate's and sub-contractor's fitness
to provide the delegated or sub-contracted services. Upon request from the
Investment Adviser, the Administrator agrees to provide a full list of
delegates and sub- contractors involved in the provision of the Services,
together with details of the services each performs.
2.04 TRUST DATA. The 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 the Trust pursuant to this Agreement
(including, without limitation, (i) prices, (ii) transaction supporting
documentation, (iii) detailed accounting methodologies with respect to the
Trust's Investments as approved by the Trust's auditors, (iv) trade and
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settlement information from prime brokers and custodians) and (v) portfolio
information provided directly or indirectly by the Investment Adviser
(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. The Trust shall have an
ongoing obligation to promptly update, or use its reasonable endeavours to
procure the prompt update of all Trust Data so that such information
remains complete and accurate. All Trust Data shall be prepared and
maintained, by or on behalf of the Trust, in accordance with applicable
law, 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 the 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.
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;
3.01.04. 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;
3.01.06. it has or will have prior to issuance of any shares a valid
engagement with an independent auditor and will provide additional
information regarding such independent auditor, including information
regarding the terms of its agreement with such independent auditor,
upon request;
3.01.09. it has notified the Administrator of any and all separate
agreements between the Trust and any third party that could have a
material impact on the Administrator's performance of its obligations
pursuant to this Agreement.
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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 (where applicable), of each of the
following:
(a) Copies of the following documents:
(1) Copies of the 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 Board covering the approval of
this Agreement, authorization of a specified officer of the Trust
to execute and deliver this Agreement and authorization for
specified officers of the Trust to instruct the Administrator.
(b) A list of all the officers of the 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 the Trust.
(d) A list of all issuers the Trust is restricted from purchasing.
(e) A list of all affiliated persons (as such term is defined in the
0000 Xxx) of the Trust that are broker-dealers.
(f) The identity of the Trust's independent auditor along with contact
information.
(g) The expense budget for the Trust for the current fiscal year.
(h) A list of contact persons (primary, backup and secondary backup)
of the 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.
The Trust shall as soon as reasonably practicable 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 the Trust,
including, without limitation, providing the Administrator with all Trust
Data and Organizational Documents reasonably requested by the
Administrator;
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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 applicable 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 the Trust, its activities or the duties,
actions or omissions of the Investment Adviser; and
3.02.07. it will as soon as reasonably practicable 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 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.
4.01.24. it is not a party to any contract or under default under any
contractual obligations which materially and adversely affects, or is
likely to materially and adversely affect, its ability to perform
hereunder.
4.02 The Administrator covenants and agrees that:
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4.02.01. it shall comply with all federal and state laws, rules
and regulations applicable to it, and to the extent it is given
prior opportunity to review and approve the same, it will use
good faith efforts to comply in all material respects with any
applicable procedures adopted by the Board, and with the
provisions of the Trust's Organizational Documents and Trust
Materials.
4.02.02. it will make available to the Trust, upon reasonable
request in the ordinary course of business, such books and
records of the Trust that are maintained under this Agreement and
reasonably available for review, and will furnish to regulatory
authorities having the requisite authority any such books and
records and any information or reports in connection with the
Administrator's services under this Agreement that may be
requested in order to ascertain whether the operations of the
Trust are being conducted in a manner consistent with applicable
laws and regulations.
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 BAD FAITH, FRAUD, GROSS NEGLIGENCE (AS DEFINED HEREIN)
WILFUL MISFEASANCE OR CRIMINAL MISCONDUCT IN THE PERFORMANCE OF THE
SERVICES UNDER THIS AGREEMENT, THE ADMINISTRATOR'S AGGREGATE LIABILITY TO
THE TRUST WILL BE LIMITED TO MONETARY DAMAGES NOT TO EXCEED THE GREATER OF
(i) THE AMOUNT OF FEES PAID HEREUNDER DURING THE TWENTY-FOUR MONTHS
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE FIRST SUCH CLAIM TO
OCCUR; AND ONE MILLION DOLLARS ($1,000,000). For the avoidance of doubt,
the Administrator shall not be responsible for any breach in the
performance of its obligations under this Agreement to the extent due to
(i) the failure or delay of the Trust or its 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 EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
SPECIAL, PUNITIVE, CONSEQUENTIAL, OR OTHER NON-DIRECT DAMAGES OF ANY KIND
ARISING FROM OR RELATING TO THIS AGREEMENT WHETHER SUCH LIABILITY IS
PREDICATED ON CONTRACT, STRICT LIABILITY, OR ANY OTHER THEORY AND
REGARDLESS OF WHETHER THE 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
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copy statements, reports and other documents necessary to support the
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 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 The 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
reasonably believes is genuine and signed or presented by an authorized
Person of the Trust; (ii) any violation by the Trust or any agent of the
Trust 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 the Trust of any representation, warranty or agreement contained
in this Agreement; (v) any act or omission of the Trust, a Special Third
Party Vendor, the Trust's other service providers (such as custodians,
prime brokers, transfer agents, the Investment Adviser 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; PROVIDED THAT
the indemnification under this clause 5.03 shall not apply to the extent
any such loss, damage or expense is caused by or arises from the
Administrator's bad faith, fraud, Gross Negligence, wilful misfeasance or
criminal conduct in the performance of the Services under this Agreement.
5.04 The Administrator may apply to the Trust, the Investment Adviser or
any Person acting on the Trust's behalf at any time for instructions and
may consult counsel for the Trust or the Investment Adviser 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. The Administrator will not
consult with the Trust's or the Investment Adviser's counsel pursuant to
this SECTION 5.04 without the knowledge of the Trust's officers. 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
the Trust until receipt of written notice thereof. To the extent that the
Administrator consults with the Trust counsel pursuant to this provision,
any such reasonable expense shall be borne by the Trust.
5.05 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, transfer agents, sub-transfer agents,
custodians, prime brokers, placement agents, third party marketers, asset
data service providers, the Investment Adviser or sub-advisers, current
third party service providers, Pricing Sources, software providers,
printers, postal or delivery services, telecommunications providers and
processing and settlement
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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.
5.06 The Administrator shall have no obligations with respect to any laws
relating to the distribution, purchase or sale of Shares. Further, the
Trust assumes full responsibility for the preparation, contents and
distribution of its Trust Materials and its compliance with any applicable
laws, rules, and regulations.
5.07 The indemnification rights 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. In the event it
is ultimately determined by a court of final jurisdiction that the
Administrator is not entitled to indemnification hereunder, then the
Administrator shall promptly return any previously advanced expenses. If in
any case the Trust is asked to indemnify or hold the Administrator
harmless, the Administrator shall promptly advise the Trust of the
pertinent facts concerning the situation in question, and the Administrator
will use all reasonable care to identify and notify the 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.
5.08 The 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 the Trust elects to assume
the defense of any such claim, the defense shall be conducted by counsel
chosen by the Trust and satisfactory to the Administrator, whose approval
shall not be unreasonably withheld. In the event that the 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 the
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 as such expenses are incurred 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.
5.09 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.
5.10 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 brokers and custodians,
investment advisors (including, without limitation, the sponsor) of any
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. The Administrator
shall have no liability or responsibility for the accuracy of the Valuation
Information provided by a Pricing Source or the delegate of a Pricing
Source and the Trust shall indemnify and defend the Administrator against
any loss, damages, costs, charges or reasonable counsel fees and expenses
in connection
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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 TRUST EXPENSES. The Trust assumes and shall pay or cause to be paid
all expenses of the Trust not otherwise allocated in this Agreement, and
the 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.
SECTION 8 COMPENSATION
8.01 FEES. The Trust (or the Investment Adviser as applicable) shall pay to
the Administrator compensation for the services performed by the
Administrator pursuant to this Agreement, such fees as set forth in the
written fee schedule annexed hereto as Schedule II and incorporated herein.
The Trust shall have no right of set-off. The fees set forth herein are
determined based on the characteristics of the Trust as of the Effective
Date. Any material change to the characteristics of the Trust 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 the fees within a
reasonable period of time, the Administrator may terminate this Agreement
upon thirty days prior written notice to the Trust. The Trust (or
Investment Adviser, as applicable) shall pay the Administrator's fees
monthly in U.S. Dollars, unless otherwise agreed to by the parties. The
Trust (or Investment Adviser, as applicable) shall pay, or cause to have
paid, 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 II.
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 one year terms (each such period, a
"Renewal Term") unless terminated by any party giving written notice of
non-renewal at least ninety 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 forthwith by any party
giving 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
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the Breach Notice shall not have remedied the noticed failure within
ninety days after receipt of the Breach Notice requiring it to be
remedied.
9.02.02. This Agreement may be terminated by any party giving
forty-five days prior notice in writing to the other parties prior to
the Liquidation (as hereinafter defined) of the Trust. For purposes of
this Section 9.02.02, the term "Liquidation" shall mean a transaction
in which all the assets of the Trust 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 the Trust. A
termination pursuant to this Section 9.02.02 shall be effective as of
the date of such Liquidation. Notwithstanding the foregoing, the right
to terminate set forth in this Section 9.02.02 shall not relieve the
Trust of its obligation to pay the fees set forth on Schedule II for
the remainder of the forty- five 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. Notwithstanding anything contained in this Agreement to the
contrary, in the event of a merger, acquisition, change in control,
re-structuring, re-organization 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 (hereinafter, an "Early
Termination") prior to the last to occur of (a) the date that is the
third 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 the event the parties agree to an Early Termination, the
parties will agree upon the effective date of such Early Termination
and, on or before such effective date, (i) the Trust shall not be in
material breach of the Agreement and (ii) the Investment Adviser shall
pay the Buyout Amount to Administrator in the manner set forth below.
As used herein, the term "Buyout Amount" shall mean the greater of
1/12(th) of the annual minimum fee multiplied by the number of months
remaining in the then current term, or $125,000. The Investment
Adviser shall pay the Buyout Amount to Administrator prior to Early
Termination by means of wire or other immediately available funds.
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 deliver to the Trust, or as it
shall direct, all books of account, records, registers,
correspondence, documents and assets relating to the affairs of or
belonging to the 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 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 the Trust,
including, without limitation, administrative costs, reasonable
attorneys fees, court costs, collection agencies or agents and
interest.
SEI -- 187423v1
11
SECTION 10 CONFLICTS OF INTEREST
10.01 NON-EXCLUSIVE. The services of the Administrator rendered to the
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 the Trust or
Person acting on the 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 the 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
the 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 the 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.
SECTION 11 CONFIDENTIALITY
11.01 CONFIDENTIAL INFORMATION. The Administrator and the 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 the 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 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. As used
herein, "Reasonable Steps" means
SEI -- 187423v1
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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 all business
strategies, plans and procedures, proprietary information, methodologies,
data and trade secrets, and other 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, the Trust's portfolio, trading or position
information, 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).
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
SEI -- 187423v1
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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 Investment 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.
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 upon written notice to the Trust,
provided that such affiliate agrees in advance and in writing to be bound
by the terms, conditions and provisions of this Agreement. The
Administrator may not assign or transfer, by operation of law or otherwise,
this Agreement (in whole or in part), to any unaffiliated entity without
the prior written consent of the Trust, which consent shall not be
unreasonably withheld or delayed. 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 THE TRUST. This
Agreement is for the sole and exclusive benefit of the Administrator and
the Trust and will not be deemed to be for the direct or indirect benefit
of either (i) the clients or customers of the Administrator or the Trust or
(ii) the Investment Adviser. The clients or customers of the Administrator,
the Trust or the Investment Adviser will not be deemed to be third party
SEI -- 187423v1
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beneficiaries of this Agreement nor to have any other contractual
relationship with the Administrator by reason of this Agreement.
12.05 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the laws of any other jurisdiction. To the extent
that the applicable laws of the State of New York, or any of the provisions
of this Agreement, conflict with the applicable provisions of the 1940 Act,
the Securities Act of 1933 or the Securities Exchange Act of 1934, the
latter shall control.
Each party to this Agreement, by its execution hereof, hereby irrevocably
submits to the nonexclusive jurisdiction of the courts of the State of New
York for the purpose of any action between the parties arising in whole or
in part under or in connection with this Agreement
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.
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 the Trust's current relationship manager.
Notices to the Trust shall be sent to the persons specified in Schedule
III.
12.09 ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof.
This Agreement supersedes all prior or contemporaneous representations,
discussions, negotiations, letters, proposals, agreements and
understandings between the parties hereto with respect to the subject
matter hereof, whether written or oral. This Agreement may be amended,
modified or supplemented only by a written instrument duly executed by an
authorized representative of each of the parties.
12.10 SEVERABILITY. Any provision of this Agreement that is determined to
be invalid or unenforceable in any jurisdiction shall be ineffective to the
extent of such invalidity or unenforceability in such jurisdiction, without
rendering invalid or unenforceable the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction. If a court of competent jurisdiction declares any
SEI -- 187423v1
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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
the 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 the Trust shall be
responsible for its compliance with all such Regulations. It shall be a
condition precedent to providing Services to the Trust under this Agreement
and the Administrator shall have no liability for 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, the Trust acknowledges
that the Administrator is authorized to return an investor's Investment in
the Trust 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 reasonable control, the Administrator shall take all
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, unless the Administrator waives this requirement,
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 who worked directly on the account of the Trust at the
Administrator during the term of this Agreement. If the Trust breaches this
provision, the Trust shall pay to the Administrator liquidated damages
equal to 100% of the most recent six 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,
SEI -- 187423v1
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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 the 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 the Trust over other clients, nothing
herein shall prevent the Administrator from (i) placing the Trust on the
Administrator's client list(s) (and sharing such list(s) with current or
potential clients of the Administrator) or (ii) otherwise orally disclosing
that 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 (ii)
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 $5 Million per occurrence ("Officer Insurance Minimum"). The
Trust shall provide a certificate of insurance to the Administrator prior
to Administrator providing Services to the Trust 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 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.
[The remainder of this page has intentionally been left blank.]
SEI -- 187423v1
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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 XXXXXX DIVERSIFIED OPPORTUNITIES
FUND
By: By:
Name: Name:
Title: Title:
INVESTMENT ADVISER: SUBSIDIARY:
XXXXXX CAPITAL US LLC XXXXXX DIVERSIFIED OPPORTUNITIES
FUND LTD.
By: By:
Name: Name:
Title: Title:
19757063.1. BUSINESS
SCHEDULE I
ADMINISTRATION SERVICES
THE ADMINISTRATOR SHALL PROVIDE THE FOLLOWING SERVICES IN RESPECT OF THE TRUST
AND, TO THE EXTENT APPLICABLE, THE SUBSIDIARY:
I. PORTFOLIO ACCOUNTING SERVICES
---------------- --- ----------------------------------------- --------------------------------------
PORTFOLIO ADMINISTRATOR SERVICES RESPONSIBILITY OF THE TRUST OR ITS
ACCOUNTING DELEGATE
SERVICES
---------------- --- ----------------------------------------- --------------------------------------
Trade Capture o Set up and maintain securities in the o Provide trade activity details in
Administrator's portfolio accounting electronic format, on a daily
system basis
o Pre-process trade files for automated o Notify the Administrator prior to
trade processing, if applicable any contemplated changes in the
o Record trade activity in the portfolio format, timing, delivery or
accounting system on a daily basis as content of trade files
reported by the Investment Adviser or o Provide a daily operations
sub-adviser contact person to whom the
Administrator should direct
queries on trade activity
---------------- --- ----------------------------------------- --------------------------------------
Income Accruals o Calculate, accrue and verify interest
and amortization accruals for fixed
income instruments for each estimate
or valuation date
o Update accounting system to reflect
rate changes on variable interest rate
instruments
---------------- --- ----------------------------------------- --------------------------------------
Receivables and o Determine the outstanding receivables
Payables and payables for all (1) security trades,
(2) portfolio share transactions and (3)
income and expense accounts in
accordance with the budgets provided
by Trust or its Investment Adviser;
---------------- --- ----------------------------------------- --------------------------------------
Corporate Action o Independently apply corporate actions o Notify Administrator of non-
Activity to securities held in the portfolio on a mandatory/voluntary corporate
Processing daily basis via standard 3(rd) party actions that should be submitted.
independent pricing agents, when
available, for each valuation date
o Process mandatory/involuntary
corporate actions based upon data
received from market data provider(s),
prime brokers, and or custodians.
o Process all non-mandatory asset
servicing events received from the
Investment Adviser with prime brokers,
and or custodians.
---------------- --- ----------------------------------------- --------------------------------------
Reconciliation o Prepare and provide daily (or as
frequent as practicable) reconciliation
report on transactions, cash and
positions to Prime Broker, Custodian,
or OTC Counterparty and Investment
Manager (Triangular reconciliation);
---------------- --- ----------------------------------------- --------------------------------------
19757063.1. BUSINESS
------ ---------- -------------------------------------------- ---------------------------------------
Security o Obtain portfolio security valuations o Provide broker quotes and
Valuations from appropriate sources consistent adviser supplied prices on a daily
with Trust's pricing and valuation basis in electronic format, if
policies, and calculate net asset value applicable.
of the Trust and each Class;
------ ---------- -------------------------------------------- ---------------------------------------
Yields, Total o Compute yields, total return, expense
Return, Expense ratios, portfolio turnover rate and
Ratios, Turnover, average dollar-weighted portfolio
Average Dollar- maturity, as appropriate;
weighted Maturity
----------------- -------------------------------------------- ---------------------------------------
II. FUND ACCOUNTING SERVICES
------ ---------- -------------------------------------------- ---------------------------------------
FUND RESPONSIBILITY OF THE TRUST OR ITS
ACCOUNTING ADMINISTRATOR SERVICES DELEGATE
SERVICES
----------------- -------------------------------------------- ---------------------------------------
Accounting books o Maintain the Trust's accounting books
and records and records
----------------- -------------------------------------------- ---------------------------------------
Income and o Track and validate income and
Expenses expense accruals, analyze and modify
expense accrual changes periodically,
and process expense disbursements to
vendors and service providers;
------ ---------- -------------------------------------------- ---------------------------------------
Income and o Prepare and provide monthly
Expenses allocations of income and expenses,
allocate new issue income to
appropriate Classes and calculation of
management fees by Class.
------ ---------- -------------------------------------------- ---------------------------------------
Expenses o Accrue expenses of the Trust o Review and approve annual
according to instructions received from expense budget. Review and
the Trust's treasurer or other approve proposed changes to
authorized representative (including the expense budget accruals, as
officers of the Trust's Investment deemed necessary.
Adviser);
------ ---------- -------------------------------------------- ---------------------------------------
NAV Calculation o Calculate the net asset value ("NAV")
(Dealing NAV) of the Trust and for each Class and
series of shares outstanding and each
investor capital account, as applicable
in accordance with the Trust's legal
operating terms for each valuation date
------ ---------- -------------------------------------------- ---------------------------------------
Income and o Calculate required ordinary income and
Capital Gains capital gains distributions, coordinate
Distributions estimated cash payments, and perform
necessary reconciliations with the
transfer agent;
------ ---------- -------------------------------------------- ---------------------------------------
19757063.1. BUSINESS
20
III. REGULATORY AND COMPLIANCE SUPPORT SERVICES
------ ---------- -------------------------------------------- ---------------------------------------
REGULATORY AND
COMPLIANCE RESPONSIBILITY OF THE TRUST OR ITS
SUPPORT ADMINISTRATOR SERVICES DELEGATE
SERVICES
-------------- ----------------------------------------------- --- ----------------------------------
Financial o Prepare the Trust's financial o Review Trust's financial
Statements and statements for review by Trust statements.
Regulatory management and independent
Reporting auditors, manage annual and semi-
annual report preparation process,
prepare Forms N-SAR, N-Q, N-CSR
and N-PX, provide Trust performance
data for annual report, coordinate
printing and delivery of annual and
semi-annual reports to shareholders,
and file Forms N-SAR, N-Q, N-CSR
and N-PX and annual/semi-annual
reports via XXXXX;
------ ------- ----------------------------------------------- --- ----------------------------------
Regulatory o Provide consultation to the Trust on o Fully cooperate with request from
Matters regulatory matters relating to the government regulators.
operation of Trust as requested and
coordinate with Trust's legal counsel
regarding such matters;
------ ------- ----------------------------------------------- --- ----------------------------------
Regulatory o Assist the Trust in handling and
Examinations responding to routine regulatory
examinations with respect to records
retained or services provided by the
Administrator, and coordinate with
Trust's legal counsel in responding to
any non-routine regulatory matters with
respect to such matters;
------ ------- ----------------------------------------------- --- ----------------------------------
State o Coordinate as necessary the o Provide list of states for
Registration registration or qualification of shares of registration.
the Trust with appropriate state
securities authorities if applicable;
------ ------- ----------------------------------------------- --- ----------------------------------
Compliance o On a T+2 post-trade basis and based o Primary day-to-day responsibility
on the information available to the for assuring compliance, including
Administrator, periodically monitor the on a pre-trade basis.
portfolios of the Trust for compliance
with applicable limitations as set forth
in the Trust's then current
Prospectuses or Statements of
Additional Information (this provision
shall not relieve Trust's investment
adviser and sub-advisers, if any, of
their primary day-to-day responsibility
for assuring such compliance, including
on a pre-trade basis).
------ ------- ----------------------------------------------- --- ----------------------------------
19757063.1. BUSINESS
21
IV. THIRD PARTY REPORTING SERVICES
------------------- --- --------------------------------------------- --- ------------------------------------
THIRD PARTY RESPONSIBILITY OF THE TRUST OR ITS
REPORTING ADMINISTRATOR SERVICES DELEGATE
SERVICES
------------------- --- --------------------------------------------- --- ------------------------------------
Registration o Provide performance, financial and o Review Registration Statement
Statements and expense information for registration and Proxy statements. Provide
Proxies statements and proxies; information relating to the
Investment Adviser, portfolio
managers, investment strategy
and any other requested
information.
----- ------------- --- --------------------------------------------- --- ------------------------------------
Third Party o Communicate periodic net asset value, o Provide written instruction to the
Reporting yield, total return or other financial data Administrator in order to distribute
to appropriate third party reporting Trust NAVs or other requested
agencies, and assist in resolution of financial information to a 3rd
errors reported by such third party party.
agencies;
----- ------------- --- --------------------------------------------- --- ------------------------------------
Additional o Upon reasonable notice and as
Reports mutually agreed upon, the
Administrator may provide additional
reports upon the request of a Trust or
its Investment Adviser, which may
result in additional charges, the amount
of which shall be agreed upon between
the parties prior to the provision of
such report.
----- ------------- --- --------------------------------------------- --- ------------------------------------
V. ADMINISTRATION SERVICES
------------------- --- --------------------------------------------- --- ------------------------------------
ADMINISTRATION RESPONSIBILITY OF THE TRUST OR ITS
SERVICES ADMINISTRATOR SERVICES DELEGATE
------------------- --- --------------------------------------------- --- ------------------------------------
Performance o Provide performance reporting data to
Trust and its Investment Adviser;
----- ------------- --- --------------------------------------------- --- ------------------------------------
Proxies o Manage the Trust's proxy solicitation o Review Registration Statement
process, including evaluating proxy and Proxy statements. Provide
distribution channels, coordinating with information relating to the
outside service provider to distribute Investment Adviser, portfolio
proxies, track shareholder responses and managers, investment strategy
tabulate voting results, and managing the and any other requested
proxy solicitation vendor if necessary; information.
----- ------------- --- --------------------------------------------- --- ------------------------------------
Trust Officers o Provide individuals to serve as officers of o Provide individuals to serve as
the Trust, as requested; officers of the Trust, as
requested;
----- ------------- --- --------------------------------------------- --- ------------------------------------
Accounting o Provide principal financial officer (i.e.
Officer CFO or Treasurer) for purposes of
Xxxxxxxx-Xxxxx and Section 32(b) of the
1940 Act;
----- ------------- --- --------------------------------------------- --- ------------------------------------
Registration o Coordinate with the Trust's counsel on o Review Registration Statement
Statements and filing of the Trust's registration statements and Proxy statements. Provide
Proxies and proxy statements, and coordinate information relating to the
printing and delivery of Trust's Investment Adviser, portfolio
prospectuses and proxy statements; managers, investment strategy
----- ------------- --- --------------------------------------------- --- ------------------------------------
00000000.0.XXXXXXXX 22
--------------- ------------------------------------------------- --------------------------------------
and any other requested
information.
--------------- ------------------------------------------------- --------------------------------------
Board Materials o Provide such fund accounting and o Provide the request for
financial reports in connection with information in a specified format
quarterly Board meetings as the boards and/or participation in a timely
of trustees may reasonably request; manner prior to such Board
meeting
--------------- ------------------------------------------------- --------------------------------------
Board Meetings o Coordinate the Trust's board of trustees' o Attendance by representative of
schedule, agenda and production of the Investment Adviser in person
Board meeting materials, and attend is anticipated at least once a
Board meetings (if requested); year, in connection with the
renewal of the advisory
agreement.
--------------- ------------------------------------------------- --------------------------------------
Board Meetings o Manage the preparation for and o Provide required documents
conducting of Board meetings and Board (e.g., Investment Adviser
committee meetings by (i) coordinating presentation, 15(c) questionnaire
board of trustees/committee book responses, Investment Adviser
production and distribution process, (ii) compliance materials, etc.) for
subject to review and approval by the Board meeting
Trust and their counsel, preparing
meeting agendas, (iii) preparing the
relevant sections of the Board meeting
materials required to be prepared by the
Administrator, (iv) assisting to gather and
coordinate special materials related to
annual contract renewals and other
approvals for and as directed by the
Board or the Trust's legal counsel, (v)
attending Board meetings, and (vi)
performing such other board of
trustees/committee meeting functions as
shall be agreed by the parties in writing
(in this regard, the Trust shall provide the
Administrator with notice of regular Board
meetings at least six (6) weeks before
such Board meeting and as soon as
practicable before any special Board
meeting);
--------------- ------------------------------------------------- --------------------------------------
Policies and o Assist legal counsel to the Trust in the
Procedures development of policies and procedures
relating to the operation of the Trust;
--------------- ------------------------------------------------- --------------------------------------
Legal o Act as liaison to legal counsel to the Trust
and, where applicable, to legal counsel to
Trust's independent trustees;
--------------- ------------------------------------------------- --------------------------------------
Trust Structure o Provide consulting with respect to the o Provide instructions with respect
ongoing design, development and to the ongoing design,
operation of the Trust, including new development and operation of
Classes and/or load structures and the Trust, including new Share
financing, as well as changes to classes and/or load structures
investment objectives and policies for the and financing, as well as
existing Trust; changes to investment
objectives and policies for the
existing Trust;
19757063.1. BUSINESS
23
----- -------- --- ---------------------------------------------------- ------------------------------
Additional o Upon reasonable notice and as mutually
Services agreed upon, the Administrator may
provide such additional services with
respect to a Trust, which may result in an
additional charge, the amount of which
shall be agreed upon between the parties
prior to the provision of such service.
----- -------- --- ---------------------------------------------------- ------------------------------
Business o Maintain a business continuity and
Continuity and disaster recovery plan for the
Disaster Administrator's operations, systems
Recovery hardware, software and data
Services
-------------- --- ---------------------------------------------------- ------------------------------
VI. AUDIT AND TAX SUPPORT SERVICES
-------------- --- ---------------------------------------------------- ------------------------------
AUDIT AND TAX
SUPPORT ADMINISTRATOR SERVICES RESPONSIBILITY OF THE TRUST
SERVICES OR ITS DELEGATE
-------------- --- ---------------------------------------------------- ------------------------------
Subchapter M o Monitor the Trust's compliance with the
requirements of Subchapter M of the Internal
Revenue Code with respect to status as a
regulated investment company;
----- -------- --- ---------------------------------------------------- ------------------------------
Federal and o Prepare and file federal and state tax returns
State Tax for the Trust other than those required to be
Returns prepared and filed by the Trust's transfer agent
or custodian.
----- -------- --- ---------------------------------------------------- ------------------------------
1099s o Prepare for review by Trust management and o Review and approve data
independent tax advisor data for year-end for year-end 1099's and
1099's and supplemental tax letters; supplemental tax letters.
----- -------- --- ---------------------------------------------------- ------------------------------
ASC 740 o ASC 740 monitoring and analysis for financial
statement disclosure, if necessary.
----- -------- --- ---------------------------------------------------- ------------------------------
Excise Tax o Compute any excise tax distribution
requirement and its related tax liability.
----- -------- --- ---------------------------------------------------- ------------------------------
Audit o Cooperate with, and take all reasonable
actions in the performance of its duties under
this Agreement to ensure that all necessary
information is made available to the
independent public accountants of the Trust in
connection with the preparation of any audit or
report requested by Trust, including the
provision of a conference room at the
Administrator's location if necessary (in this
regard, Trust's independent auditors shall
provide the Administrator with reasonable
notice of any such audit so that (i) the audit will
be completed in a timely fashion and (ii) the
Administrator will be able to promptly respond
to such information requests without undue
disruption of its business).
----- -------- --- ---------------------------------------------------- ------------------------------
19757063.1. BUSINESS
24
VII. ONLINE REPORTING SOLUTIONS
-------------- --- ------------------------------------- --- --------------------------------
SEI MANAGER ADMINISTRATOR SERVICES RESPONSIBILITY OF THE TRUST OR ITS
DASHBOARD DELEGATE
-------------- --- ------------------------------------- --- --------------------------------
Implementation o Aggregate and consolidate data from o Provide users and their
source systems based upon service permissions to be set-up
levels of outsourcing agreement with o Provide requirements for initial
SEI configuration
o Provide web-based reporting to
Investment Adviser for access to
Trust, position, and transaction data
from source systems
o Provide flexible reporting tool which
allows users to customize reports
o Provide online document retrieval
tool via the SEI manager dashboard
o Set up and configure Investment
Adviser users and provide training
-------------- --- ------------------------------------- --- --------------------------------
Production o Create and maintain users and o Provide any ongoing user
entitlements on the website permission changes or new user
o Maintain daily controls and setups
reconciliation of data loaded to the
data warehouse from the source
systems
-------------- --- ------------------------------------- --- --------------------------------
VIII. CPO RECORDKEEPING SERVICES (Provided only in respect of commodity pools
indicated to the Administrator pursuant to CFTC Rules)
----------------------------------------------------------------------------------------------------------------------------
CPO RECORDKEEPING ADMINISTRATOR RESPONSIBILITY INVESTMENT ADVISER
SERVICES RESPONSIBILITY
----------------------------------------------------------------------------------------------------------------------------
CPO Recordkeeping o Maintain, solely with respect o Indicate to the Administrator each
to the period during which the commodity pool pursuant to CFTC Rules for
Administrator acts as official which the Services in this section are
books and records pursuant to requested
this Agreement, each commodity o Make required filings with the National
pool's records as otherwise Futures Association in connection with
required to be maintained by the each commodity pool covered by this
Investment Adviser pursuant to section
CFTC Regulations 4.7(b)(4), o Provide the Administrator with copies of
4.23(a)(1), (2),(4), (5), (6), all NFA filings made in connection with
(10) and (11) and in accordance each commodity pool for which the
with the requirements of Section Administrator provides CPO Recordkeeping
1.31 of the CFTC Regulations Services
o Keep each commodity pool's records
open to inspection by any
representative of the Commodities
Futures Trading Commission, the National
Futures Association, or the United States
Department of Justice in accordance
with Section 1.31 of the CFTC Regulations.
o Notify the Investment Adviser, and respond
to investor requests for records maintained
hereunder
o Identify an individual contact person and
telephone number at the Administrator as a
point of contact in respect of the
Administrator's maintenance of records
pursuant to this section
o Provide certification letter to the
Investment Manager as requested, indicating
performance of the CPO Recordkeeping
Services set forth herein
----------------------------------------------------------------------------------------------------------------------------
19757063.1. BUSINESS
25
SCHEDULE II
SCHEDULE OF FEES
ADMINISTRATION AND ACCOUNTING FEE:
The following fees are due and payable monthly to Administrator pursuant to
SECTION 8 of the Agreement. The Trust will be charged the greater of the Asset
Based Fee or the Annual Minimum Fee, in each case calculated in the manner set
forth below.
ASSET BASED FEES: (calculated and assessed monthly in arrears based on the
average daily net assets of the Trust as of the prior month-end):
-------------------------------------------- ------------
TRUST ASSETS BASIS POINTS
-------------------------------------------- ------------
First $250 million in aggregate net assets 11
-------------------------------------------- ------------
Next $250 million in aggregate net assets 10
-------------------------------------------- ------------
Next $500 million in aggregate net assets 9
-------------------------------------------- ------------
Aggregate net assets in excess of $1 billion 7
-------------------------------------------- ------------
ANNUAL MINIMUM FEE (CALCULATED AND PAID ON A MONTHLY BASIS):
------------------------------------------- ------------------
TRUST ANNUAL MINIMUM FEE
------------------------------------------- ------------------
Xxxxxx Diversified Opportunities Fund $125,000
------------------------------------------- ------------------
ADDITIONAL CLASS FEES:
$15,000 per annum per Class of the Trust (charged in addition to applicable
Asset Based Fees or Annual Minimum Fees
SUBSIDIARY FEES:
$40,000 per annum per Subsidiary (charged in addition to applicable Asset Based
Fees or Annual Minimum Fees)
CPO RECORDKEEPING SERVICES FEES:
$3,000 per annum per commodity pool for which CPO Recordkeeping Services are
provided, plus out of pocket expenses as incurred in respect of any request for
reproduction of records by interest holders, the Investment Adviser or any
regulatory authority.
REORGANIZATION FEE (PAYABLE BY THE INVESTMENT ADVISER):
The Investment Adviser shall pay Administrator a transaction charge equal to
$35,000 in connection with each Reorganization Event to which the Trust is a
party unless, immediately following such Reorganization Event, Administrator or
one of its affiliates continues providing, or enters into a written agreement
to provide as applicable, administration services to the Trust. For purposes of
the foregoing, a "REORGANIZATION EVENT" means any material change in the
organizational structure of the Trust, including, without limitation, any
merger, acquisition or divestiture of all or any portion of the assets of the
Trust , as well as any acquisition or merger by the Trust of any other assets
into the Trust or any appointment or other replacement of a majority of the
Trust's Board. For the avoidance of doubt, the Reorganization Fee shall not be
payable in respect of any Reorganization Event at the Subsidiary.
EXPENSE REIMBURSEMENT:
All reasonable expenses incurred by the Administrator on behalf of a Portfolio
will be billed to the applicable Portfolio quarterly in arrears as set forth in
SECTION 7.02 of this Agreement.
19757063.1. BUSINESS
26
SCHEDULE III
NOTICE INSTRUCTION FORM
TO WHOM NOTICES SHOULD BE SENT PURSUANT TO SECTION 12.08 OF THE AGREEMENT:
Name of Party or Parties: Xxxxxx Diversified Opportunities Fund
Address: 0 Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
With a copy to: Xxxxxx Capital Management Limited
Address: Xxxxx Xxxxx, 00 Xxxxxxxxxxx Xxxxx
Xxxxxx X0 ONE UK
Contact: General Counsel,
Email: Xxxxx-Xxxxxx@xxxxxxxxxxxxx.xxx
19757063.1. BUSINESS
27
