ADMINISTRATION AGREEMENT
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THIS AGREEMENT is made as of this ________ day of _________________ ,
2001, by and between XXXXXX XXXX MULTISTOCK FUNDS, a Massachusetts business
trust (the "Company"), having its principal place of business at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000, and BISYS FUND SERVICES LIMITED PARTNERSHIP, (the
"Administrator"), a limited partnership organized under the laws of the State of
Ohio and having its principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx,
Xxxx 00000.
WHEREAS, the Company is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), which may consist of one or more series of shares of beneficial interest
or common stock ("Shares"); and
WHEREAS, Dexia Banque Internationale a Luxembourg ("Dexia", and any
other service provider replacing Dexia is hereinafter referred to as the
"Luxembourg Administrator") is providing certain financial administration
services to the Company; and
WHEREAS, the Company desires the Administrator to provide, and the
Administrator is willing to provide, certain management and administrative
services to each series of the Company, all as now or hereafter may be
established from time to time ("Portfolios"), on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Company and the Administrator hereby agree as
follows:
ARTICLE 1. Retention of the Administrator. The Company hereby retains
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the Administrator to act as the administrator of the Portfolios and to furnish
the Portfolios with the management and administrative services set forth in
Article 2 below. The Administrator hereby accepts such employment to perform the
duties set forth below.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Company in any way and shall
not be deemed an agent of the Company.
ARTICLE 2. Administrative Services. The Administrator shall perform
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administrative services in connection with the operations of the Portfolios,
and, on behalf of the Company, will investigate, assist in the selection of and
conduct relations with custodians, depositories, accountants, legal counsel,
underwriters, brokers and dealers, corporate fiduciaries, insurers, banks and
persons in any other capacity deemed to be necessary or desirable for the
Portfolios' operations. The Administrator shall provide the Board of Trustees/
Directors of the Company (hereafter referred to as the "Directors") with such
reports
regarding investment performance as they may reasonably request but shall have
no responsibility for supervising the performance by any investment adviser or
sub-adviser of its responsibilities.
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The Administrator shall undertake certain regulatory reporting, and
shall provide all necessary office space, equipment, personnel, compensation and
facilities (including facilities for Shareholders' and Directors' meetings) for
handling the affairs of the Portfolios and such other services as the
Administrator shall, from time to time, determine to be necessary to perform its
obligations under this Agreement. In addition, at the request of the Directors,
the Administrator shall make reports to the Company's Directors concerning the
performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator
shall:
(a) compute the Company's total return;
(b) (i) prepare, coordinate, and file with the SEC the
annual update to the Company's registration statement on Form
N-1A and other routine post-effective amendments and
supplements, (ii) prepare, coordinate and file with the SEC
supplements to the Company's registration statement or, as
agreed upon by the parties hereto, review such supplements
that are prepared by counsel to the Company, (iii) review and
file Notices of Annual or Special Meetings of shareholders
and proxy materials relating thereto with respect to routine
matters, (iv) assist Company counsel in preparing
non-routine post-effective amendments and supplements and
proxy materials, (v) coordinate the solicitation and
tabulation of proxies in connection with meetings of
shareholders, (vi) coordinate the printing and distribution of
prospectuses, supplements and proxy materials, (vii) maintain
corporate records on behalf of the Company, including, but not
limited to, minute books, Declaration of Trust and By-Laws,
(viii) provide appropriate personnel to attend board meetings
and record the minutes of such meetings, and (ix) produce and
distribute materials for board meetings, including agendas,
proposed resolutions, and relevant sections of the board
materials pertaining to the responsibilities of the Company's
administrator;
(c) prepare such reports, notice filing forms and other documents
(including reports regarding the sale and redemption of Shares
as may be required in order to comply with Federal and state
securities laws) as may be necessary or desirable to make
notice filings relating to the Company's Shares with state
securities authorities, monitor the sale of Company Shares for
compliance with state securities laws, and file with the
appropriate state securities authorities the
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registration statements and reports for the Company and the
Company's Shares and all amendments thereto, as may be
necessary or convenient to qualify and keep effective the
Company and the Company's Shares with state securities
authorities to enable the Company to make a continuous
offering of its Shares;
(d) develop and prepare, with the assistance of the Company's
investment adviser, communications to Shareholders, including
the annual report to Shareholders, coordinate the mailing of
prospectuses, notices, proxy statements, proxies and other
reports to Company Shareholders, and supervise and facilitate
the proxy solicitation process for all shareholder meetings,
including the tabulation of shareholder votes;
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(e) administer contracts on behalf of the Company with, among
others, the Company's investment adviser, distributor,
custodian, transfer agent and fund accountant;
(f) supervise the Company's transfer agent with respect to the
payment of dividends and other distributions to Shareholders;
(g) calculate performance data of the Portfolios for
dissemination to information services covering the investment
company industry;
(h) coordinate and supervise the preparation and filing of the
Company's tax returns;
(i) examine and review the operations and performance of the
various organizations providing services to the Company or any
Portfolio of the Company, including, without limitation, the
Company's investment adviser, distributor, custodian, fund
accountant, transfer agent, outside legal counsel and
independent public accountants, and at the request of the
Directors, report to the Board on the performance of
organizations;
(j) assist with the layout and printing of publicly
disseminated prospectuses and assist with and coordinate
layout and printing of the Company's semi-annual and annual
reports to Shareholders;
(k) assist with the design, development, and operation of the
Portfolios, including new classes, investment objectives,
policies and structure;
(l) provide individuals reasonably acceptable to the Company's
Directors to serve as officers of the Company, who will be
responsible for the management of certain of the Company's
affairs as determined by the Company's Directors;
(m) upon request, advise the Company and its Directors on
matters concerning the Company and its affairs;
(n) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the
Company in accordance with the requirements of Rules 17g-1 and
17d-1(7) under the 1940 Act as such bonds and policies are
approved by the Company's Directors;
(o) monitor and advise the Company and its Portfolios on their
registered investment company status under the Internal
Revenue Code of 1986, as amended;
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(p) upon request, furnish advice and recommendations with
respect to other aspects of the business and affairs of the
Portfolios as the Company and the Administrator shall
determine desirable; and
(q) utilizing information obtained from the Company and the
Luxembourg Administrator, prepare and file with the SEC the
reports for the Company on Forms N-30D and N-SAR and all
required notices pursuant to Rule 24f-2.
The Administrator shall perform such other services for the Company
that are mutually agreed upon by the parties from time to time. Such services
may include performing internal audit examinations; mailing the annual reports
of the Portfolios; preparing an annual list of Shareholders; and mailing notices
of Shareholders' meetings, proxies and proxy statements, for all of which the
Company will pay the Administrator's fees and out-of-pocket expenses.
The Company acknowledges that the Administrator shall not be
responsible for determining or implementing the Company's investment policies or
decisions or the marketing, promotion or distribution of Shares of the Company
or ensuring compliance with applicable laws in relation to such marketing,
promotion or distribution.
The Company further acknowledges that the Administrator shall not be
responsible for enforcing compliance by the Company, or its delegates or any
other person with any restrictions or guidelines imposed on the Company by the
constitutional documents, prospectuses and trust documents of the Company or any
other document or by law or regulation or otherwise with regard to investments
by the Company, provided, however, that the Administrator will be responsible
for conducting certain compliance tests regarding each Portfolio's investment
portfolios and for reporting to the Investment Manager regarding such tests, all
as agreed upon from time to time in writing between the Company and the
Administrator.
ARTICLE 3. Allocation of Charges and Expenses.
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(A) The Administrator. The Administrator shall furnish at its own
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expense the executive, supervisory and clerical personnel necessary to perform
its obligations under this Agreement. The Administrator shall also provide the
items which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Company as well as all Directors of the
Company who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided,
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the Administrator shall not be obligated to pay the compensation of any employee
of the Company retained by the Directors of the Company to perform services on
behalf of the Company.
(B) The Company. The Company assumes and shall pay or cause to be paid
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all other expenses of the Company not otherwise allocated herein, including,
without limitation, organization costs, taxes, expenses for legal and auditing
services, the expenses of preparing (including typesetting), printing and
mailing reports, prospectuses, statements of additional information, proxy
solicitation material and notices to existing Shareholders, all expenses
incurred in connection with issuing and redeeming Shares, the costs of custodial
services, the cost of initial and ongoing registration of the Shares under
Federal and state securities laws, fees and out-of-pocket expenses of Directors
who are not affiliated persons of the Administrator or the Investment Adviser to
the Company or any affiliated corporation of the Administrator or the Investment
Adviser, insurance, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of investment
advisers to the Company.
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ARTICLE 4. Compensation of the Administrator.
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(A) Administration Fee. For the services to be rendered, the facilities
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furnished and the expenses assumed by the Administrator pursuant to this
Agreement, the Company shall pay to the Administrator such fees that are set
forth in the Omnibus Fee Agreement between the Company, BISYS Fund Services
Ohio, Inc. and the Administrator dated as of the date hereof (the "Fee
Agreement"). Such compensation shall be calculated and accrued daily, and paid
to the Administrator monthly. In addition to paying the Administrator the fees
set forth in the Fee Agreement, the Company shall also reimburse the
Administrator for its reasonable out-of-pocket expenses, including the travel
and lodging expenses incurred by officers and employees of the Administrator in
connection with attendance at Board meetings and other meetings at which
attendance is requested or required.
If this Agreement becomes effective subsequent to the first
day of a month or terminates before the last day of a 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 above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
(B) Survival of Compensation Rights. All rights of compensation under
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this Agreement for services performed as of the termination date shall survive
the termination of this Agreement.
ARTICLE 5. Limitation of Liability of the Administrator. The duties of
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the Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Administrator
hereunder. The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any act or omission in carrying
out its duties hereunder, except a loss resulting from willful misfeasance, bad
faith or negligence in the performance of its duties, or by reason of reckless
disregard of its obligations and duties hereunder, except as may otherwise be
provided under provisions of applicable law which cannot be waived or modified
hereby. (As used in this Article 5, the term "Administrator" shall include
partners, officers, employees and other agents of the Administrator as well as
the Administrator itself.) In addition, the Administrator shall not be liable
for any act or omission in carrying out its duties hereunder, relating to, or
resulting from, the performance or non-performance of the Luxembourg
Administrator, including, without limitation, the failure of the Luxembourg
Administrator to cooperate with the Administrator and to provide accurate
information in a timely manner.
So long as the Administrator acts in good faith and with due diligence
and without negligence, the Company assumes full responsibility and shall
indemnify the Administrator and
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hold it harmless from and against 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 the Administrator's actions taken or nonactions with
respect to the performance of services hereunder. The indemnity and defense
provisions set forth herein shall indefinitely survive the termination of this
Agreement.
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The rights hereunder shall include the right to reasonable advances of
defense expenses in the event of any pending or threatened litigation with
respect to which indemnification hereunder may ultimately be merited. In order
that the indemnification provision contained herein shall apply, however, it is
understood that if in any case the Company may be asked to indemnify or hold the
Administrator harmless, the Company shall be fully and promptly advised of all
pertinent facts concerning the situation in question, and it is further
understood that the Administrator will use all reasonable care to identify and
notify the Company promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification against
the Company, but failure to do so in good faith shall not affect the rights
hereunder.
The Company 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 Company elects to assume the defense
of any such claim, the defense shall be conducted by counsel chosen by the
Company and satisfactory to the Administrator, whose approval shall not be
unreasonably withheld. In the event that the Company 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 Company does not
elect to assume the defense of a suit, it will reimburse the Administrator for
the reasonable fees and expenses of any counsel retained by the Administrator.
The Administrator may apply to the Company at any time for instructions
and may consult counsel for the Company or its own counsel and with accountants
and other experts with respect to any matter arising in connection with the
Administrator's duties, 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 opinion of such counsel, accountants or other experts.
Also, the Administrator shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. The Administrator will not be held to have
notice of any change of authority of any officers, employees or agents of the
Company until receipt of written notice thereof from the Company.
ARTICLE 6. Activities of the Administrator. The services of the
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Administrator rendered to the Company are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that directors, officers, employees
and Shareholders of the Company are or may be or become interested in the
Administrator, as officers, employees or otherwise and that partners, officers
and employees of the Administrator and its counsel are or may be or become
similarly interested in the Company, and that the Administrator may be or become
interested in the Company as a Shareholder or otherwise.
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ARTICLE 7. Duration of this Agreement. The Term of this Agreement shall
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be as specified in Schedule A hereto.
ARTICLE 8. Assignment. This Agreement shall not be assignable by either
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party without the written consent of the other party; provided, however, that
the Administrator may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder. The
Administrator shall not, however, be relieved of any of its obligations under
this Agreement by the appointment of such subcontractor and provided further,
that the Administrator shall be responsible, to the extent provided in Article 5
hereof, for all acts of such subcontractor as if such acts were its own. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
ARTICLE 9. Amendments. This Agreement may be amended by the parties
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hereto only if such amendment is specifically approved (i) by the vote of a
majority of the Directors of the Company, and (ii) by the vote of a majority of
the Directors of the Company who are not parties to this Agreement or interested
persons of any such party, cast in person at a Directors meeting called for the
purpose of voting on such approval.
ARTICLE 10. Certain Records. The Administrator shall maintain customary
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records in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by the Administrator
on behalf of the Company shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Company and will be made
available to or surrendered promptly to the Company on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Company and follow the
Company's instructions as to permitting or refusing such inspection; provided
that the Administrator may exhibit such records to any person in any case where
it is advised by its counsel that it may be held liable for failure to do so,
unless (in cases involving potential exposure only to civil liability) the
Company has agreed to indemnify the Administrator against such liability.
ARTICLE 11. Definitions of Certain Terms. The terms "interested person"
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and
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"affiliated person," when used in this Agreement, shall have the respective
meanings specified in the 1940 Act and the rules and regulations thereunder,
subject to such exemptions as may be granted by the Securities and Exchange
Commission.
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ARTICLE 12. Notice. Any notice provided hereunder shall be sufficiently
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given when sent by registered or certified mail to the party required to be
served with such notice at the following address: if to the Company, to it at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Secretary; if to the
Administrator, to it at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attn:
President, or at such other address as such party may from time to time specify
in writing to the other party pursuant to this Section.
ARTICLE 13. Governing Law. This Agreement shall be construed in
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accordance with the laws of the State of Ohio and the applicable provisions of
the 1940 Act. To the extent that the applicable laws of the State of Ohio, or
any of the provisions herein, conflict with the applicable provisions of the
1940 Act, the latter shall control.
ARTICLE 14. Multiple Originals. This Agreement may be executed in two
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or more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
ARTICLE 15. Provisions Relating to a Massachusetts Business Trust. It
is expressly agreed that the obligations of the Company hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents or
employees of the Company, personally, but bind only the trust property of the
Portfolio, as provided in the Master Trust Agreement of the Company. The
execution and delivery of the Agreement have been authorized by the Trustees and
the sole shareholder of the Portfolio shares and signed by an authorized officer
of the Company, acting as such, and neither such authorization by such Trustees
and shareholder nor such execution and delivery by such officer shall be deemed
to have been made by any of them individually or to impose any liability on any
of them personally, but shall bind only the trust property of the Portfolio as
provided in its Master Trust Agreement. The obligations of this Agreement shall
be binding only upon the assets and property of the Portfolio and not upon the
assets and property of any other sub-trust of the Company.
ARTICLE 16. Privacy. Nonpublic personal financial information relating
to consumers or customers of the Company provided by, or at the direction of the
Company to the Administrator, or collected or retained by the Administrator to
perform its duties as administrator of the Portfolios shall be considered
confidential information. The Administrator shall not give, sell or in any way
transfer such confidential information to any person or entity, other than
affiliates of Administrator except at the direction of the Company or as
required or permitted by law. The Administrator shall have in place and maintain
physical, electronic and procedural safeguards reasonably designed to protect
the security, confidentiality and integrity of, and to prevent unauthorized
access to or use of records and information relating to consumers of the
Company. The Company represents to the Administrator that it has adopted a
Statement of its privacy policies and practices as
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required by Securities and Exchange Commission Regulation S-P and agrees to
provide the Administrator with a copy of that statement annually.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the day and year first above written.
XXXXXX XXXX MULTISTOCK FUNDS
By:
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Title:
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BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS FUND SERVICES, INC. ,
Title:General Partner
By:_____________________
Title: _____________________
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SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF
BETWEEN
XXXXXX XXXX MULTISTOCK FUNDS
AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
Term: Pursuant to Article 7, the term of this Agreement shall
commence on _______________________, 2001 and shall remain
in effect through _______________________, 2003 ("Initial
Term". Thereafter, unless otherwise terminated as provided
herein, this Agreement shall be renewed automatically for
successive one-year periods ("Rollover Periods"). This
Agreement may be terminated without penalty (i) by provision
of a notice of nonrenewal in the manner set forth below, (ii)
by mutual agreement of the parties or (iii) for "cause," as
defined below, upon the provision of sixty (60) days advance
written notice by the party alleging cause. Written notice of
nonrenewal must be provided at least sixty (60) days prior to
the end of the Initial Term or any Rollover Period, as the
case may be.
For purposes of this Agreement, "cause" shall mean
(a) a material breach of this Agreement that has not been
remedied for thirty (30) days following written notice of such
breach from the non- breaching party; (b) a final,
unappealable judicial, regulatory or administrative ruling or
order in which the party to be terminated has been found
guilty of criminal or unethical behavior in the conduct of its
business; (c) financial difficulties on the part of the party
to be terminated which are evidenced by the authorization or
commencement of, or involvement by way of pleading, answer,
consent or acquiescence in, a voluntary or involuntary case
under Title 11 of the United States Code, as from time to time
is in effect, or any applicable law, other than said Title 11,
of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration
of the rights of creditors; (d) any failure on the part of the
Company to collect from the investment manager any payment or
reimbursement that is due and payable by the investment
manager to the Company (including an amount due the
A-1
Company that directly or indirectly represents amounts payable
to the Administrator in its
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capacity as fund administrator to the Company) within sixty (60) days following
the due date; or (e) any failure on the part of the Company to pay an amount
that is due and payable to the Administrator or any of its affiliates under any
other agreement to which the Company is a party within sixty (60) days following
the due date. For purposes of this definition of "cause," a material breach
shall include, but not be limited to, any failure on the part of the Company to
pay fees due and payable to the Administrator pursuant to Article 4 hereunder
within sixty (60) days following the due date.
Notwithstanding the foregoing, after such termination for so long as
the Administrator, with the written consent of the Company, in fact
continues to perform any one or more of the services contemplated by
this Agreement or any schedule or exhibit hereto, the provisions of
this Agreement, including without limitation the provisions dealing
with indemnification, shall continue in full force and effect.
Compensation due the Administrator and unpaid by the Company upon such
termination shall be immediately due and payable upon and
notwithstanding such termination. The Administrator shall be entitled
to collect from the Company, in addition to the compensation described
in this Schedule A, the amount of all of the Administrator's cash
disbursements for services in connection with the Administrator's
activities in effecting such termination, including without limitation,
the delivery to the Company and/or its designees of the Company's
property, records, instruments and documents.
If, for any reason other than nonrenewal, mutual agreement of the
parties or "cause," as defined above, the Administrator is replaced as
administrator, or if a third party is added to perform all or a part of
the services provided by the Administrator under this Agreement
(excluding any sub-administrator appointed by the Administrator as
provided in Article 7 hereof), then the Company shall make a one-time
cash payment, in consideration of the fee structure and services to be
provided under this Agreement, and not as a penalty, to the
Administrator equal to the balance due the Administrator for the
remainder of the then-current term of this Agreement, assuming for
purposes of calculation of the payment that such balance shall be based
upon the average amount of the Company's assets for the twelve months
prior to the date the Administrator is replaced or a third party is
added.
In the event the Funds are merged into another legal entity in part or
in whole pursuant to any form of business reorganization or is
liquidated in part or in whole prior to the expiration of the then-
current term of this Agreement, the parties acknowledge and agree that
the liquidated damages provision set forth above shall be applicable in
those instances in which the Administrator is not retained to provide
administration services consistent with this Agreement. The one-time
cash payment referenced above shall be due and payable on the day prior
to the first day in which the Administrator is replaced or a third
party is added.
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The parties further acknowledge and agree that, in the event the
Administrator is replaced, or a third party is added, as set forth
above, (i) a determination of actual damages incurred by the
Administrator would be extremely difficult, and (ii) the liquidated
damages provision contained herein is intended to adequately compensate
the Administrator for damages incurred and is not intended to
constitute any form of penalty.
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