Exhibit 99.(k)(ii)
ADMINISTRATION AGREEMENT
AGREEMENT made as of _______________, by and between each entity listed on
Exhibit A hereto (each, a "Fund"; collectively, the "Funds"), and The Bank of
New York, a New York banking organization (the "Administrator").
W I T N E S S E T H :
WHEREAS, each Fund is an investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, each Fund desires to retain the Administrator to provide
administration services for the portfolios identified on Exhibit A hereto (each,
a "Series") and the Administrator is willing to provide such services, all as
more fully set forth below;
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
w. APPOINTMENT.
Each Fund hereby appoints the Administrator as its agent for the term of
this Agreement to perform the services described herein. The Administrator
hereby accepts such appointment and agrees to perform the duties hereinafter set
forth.
x. REPRESENTATIONS AND WARRANTIES.
Each Fund hereby represents and warrants to the Administrator, which
representations and warranties shall be deemed to be continuing, that:
a. It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to
carry on its business as now conducted, to enter into
this Agreement and to perform its obligations
hereunder;
b. This Agreement has been duly authorized, executed and
delivered by the Fund in accordance with all requisite
action and constitutes a valid and legally binding
obligation of the Fund, enforceable in accordance with
its terms; and
c. It is conducting its business in compliance with all
applicable laws and regulations, both state and
federal, and has obtained all regulatory licenses,
approvals and
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consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order
or judgment binding on it and no provision of its
charter or by-laws, nor of any mortgage, indenture,
credit agreement or other contract binding on it or
affecting its property which would prohibit its
execution or performance of this Agreement.
y. DELIVERY OF DOCUMENTS.
a. Each Fund will promptly deliver to the Administrator
true and correct copies of each of the following
documents as currently in effect and will promptly
deliver to it all future amendments and supplements
thereto, if any:
1. The Fund's articles of incorporation
or other organizational document and
all amendments thereto (the
"Charter");
2. The Fund's bylaws (the "Bylaws");
3. Resolutions of the Fund's board of
directors or other governing body
(the "Board") authorizing the
execution, delivery and performance
of this Agreement by the Fund;
4. The Fund's registration statement
most recently filed with the
Securities and Exchange Commission
(the "SEC") relating to the shares
of the Fund (the "Registration
Statement");
5. The Fund's Notification of
Registration under the 1940 Act on
Form N-8A filed with the SEC; and
6. The Fund's Prospectus and Statement
of Additional Information pertaining
to the Series (collectively, the
"Prospectus").
b. Each copy of the Charter shall be certified by the
Secretary of State (or other appropriate official) of
the state of organization, and if the Charter is
required by
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law also to be filed with a county or other officer or
official body, a certificate of such filing shall be
filed with a certified copy submitted to the
Administrator. Each copy of the Bylaws, Registration
Statement and Prospectus, and all amendments thereto,
and copies of Board resolutions, shall be certified by
the Secretary or an Assistant Secretary of the
appropriate Fund.
c. It shall be the sole responsibility of each Fund to
deliver to the Administrator its currently effective
Prospectus and the Administrator shall not be deemed to
have notice of any information contained in such
Prospectus until it is actually received by the
Administrator.
z. DUTIES AND OBLIGATIONS OF THE ADMINISTRATOR.
a. Subject to the direction and control of each Fund's
Board and the provisions of this Agreement, the
Administrator shall provide to each Fund the
administrative services set forth on Schedule I
attached hereto.
b. In performing hereunder, the Administrator shall
provide, at its expense, office space, facilities,
equipment and personnel.
c. The Administrator shall not provide any services
relating to the management, investment advisory or
sub-advisory functions of any Fund, distribution of
shares of any Fund, maintenance of any Fund's financial
records or other services normally performed by the
Funds' respective counsel or independent auditors.
d. Upon receipt of a Fund's prior written consent (which
shall not be unreasonably withheld), the Administrator
may delegate any of its duties and obligations
hereunder to any delegee or agent whenever and on such
terms and conditions as it deems necessary or
appropriate. Notwithstanding the foregoing, no Fund
consent shall be required for any such delegation to
any other subsidiary of The Bank of New York Company,
Inc. The Administrator shall not be liable to any Fund
for any loss or damage arising out of, or in connection
with, the actions or omissions to act of any delegee or
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agent utilized hereunder so long as the Administrator
acts in good faith and without negligence or willful
misconduct in the selection of such delegee or agent.
e. Each Fund shall cause its officers, advisors, sponsor,
legal counsel, independent accountants, current
administrator (if any) and transfer agent to cooperate
with the Administrator and to provide the
Administrator, upon its written request, with such
information, documents and advice relating to such Fund
as is within the possession or knowledge of such
persons, in order to enable the Administrator to
perform its duties hereunder. In connection with its
duties hereunder, the Administrator shall be entitled
to rely, and shall be held harmless by each Fund when
acting in reliance, upon the instructions, advice or
any documents relating to such Fund provided to the
Administrator by any of the aforementioned persons. The
Administrator shall not be liable for any loss, damage
or expense resulting from or arising out of the failure
of the Fund to cause any information, documents or
advice to be provided to the Administrator upon its
written request as provided herein. All fees or costs
charged by such persons shall be borne by the
appropriate Fund.
f. Nothing in this Agreement shall limit or restrict the
Administrator, any affiliate of the Administrator or
any officer or employee thereof from acting as
administrator for or with any third parties.
g. The Administrator may apply to an officer of any Fund
for written instructions with respect to any matter
arising in connection with the Administrator's
performance hereunder for such Fund, and the
Administrator shall not be liable for any action taken
or omitted to be taken by it in good faith in
accordance with such instructions. Such application for
instructions may, at the option of the Administrator,
set forth in writing any action proposed to be taken or
omitted to be taken by the Administrator with respect
to its duties or obligations under this Agreement and
the date on and/or after which such action shall be
taken, and the Administrator shall not be liable for
any action
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taken or omitted to be taken in accordance with a
proposal included in any such application on or after
the date specified therein unless, prior to taking or
omitting to take any such action, the Administrator has
received written instructions in response to such
application specifying the action to be taken or
omitted. The Administrator may consult with counsel to
the appropriate Fund or its own counsel, at such Fund's
expense, and shall be fully protected with respect to
anything done or omitted by it in good faith in
accordance with the advice or opinion of such counsel.
h. Notwithstanding any other provision contained in this
Agreement or any Schedule hereto, the Administrator
shall have no duty or obligation to with respect to,
including, without limitation, any duty or obligation
to determine, or advise or notify any Fund of: (i) the
taxable nature of any distribution or amount received
or deemed received by, or payable to, a Fund, (ii) the
taxable nature or effect on a Fund or its shareholders
of any corporate actions, class actions, tax reclaims,
tax refunds or similar events, (iii) the taxable nature
or taxable amount of any distribution or dividend paid,
payable or deemed paid, by a Fund to it shareholders;
or (iv) the effect under any federal, state, or foreign
income tax laws of a Fund making or not making any
distribution or dividend payment, or any election with
respect thereto.
i. The Administrator shall have no duties or
responsibilities whatsoever except such duties and
responsibilities as are specifically set forth in this
Agreement and Schedule I hereto, and no covenant or
obligation shall be implied against the Administrator
in connection with this Agreement.
aa. ALLOCATION OF EXPENSES.
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance of this Agreement shall be paid by
the appropriate Fund, including but not limited to, organizational costs and
costs of maintaining corporate existence, taxes, interest, brokerage fees and
commissions, insurance premiums, compensation and expenses of such Fund's
trustees, directors, officers or employees, legal, accounting and audit
expenses, management, advisory, sub-advisory,
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administration and shareholder servicing fees, charges of custodians, transfer
and dividend disbursing agents, expenses (including clerical expenses) incident
to the issuance, redemption or repurchase of Fund shares, fees and expenses
incident to the registration or qualification under federal or state securities
laws of the Fund or its shares, costs (including printing and mailing costs) of
preparing and distributing Prospectuses, reports, notices and proxy material to
such Fund's shareholders, all expenses incidental to holding meetings of such
Fund's trustees, directors and shareholders, and extraordinary expenses as may
arise, including litigation affecting such Fund and legal obligations relating
thereto for which the Fund may have to indemnify its trustees, directors and
officers.
bb. STANDARD OF CARE; INDEMNIFICATION.
a. Except as otherwise provided herein, the Administrator
shall not be liable for any costs, expenses, damages,
liabilities or claims (including attorneys' and
accountants' fees) incurred by a Fund, except those
costs, expenses, damages, liabilities or claims arising
out of the Administrator's own bad faith, gross
negligence or willful misconduct. In no event shall the
Administrator be liable to any Fund or any third party
for special, indirect or consequential damages, or lost
profits or loss of business, arising under or in
connection with this Agreement, even if previously
informed of the possibility of such damages and
regardless of the form of action.
b. Each Fund shall indemnify and hold harmless the
Administrator from and against any and all costs,
expenses, damages, liabilities and claims (including
claims asserted by a Fund), and reasonable attorneys'
and accountants' fees relating thereto, which are
sustained or incurred or which may be asserted against
the Administrator, by reason of or as a result of any
action taken or omitted to be taken by the
Administrator in good faith hereunder or in reliance
upon (i) any law, act or regulation or official
interpretation of the same even though the same may
thereafter have been altered, changed, amended or
repealed, (ii) such Fund's Registration Statement or
Prospectus, (iii) any instructions of an officer of
such Fund, or (iv) any opinion of legal counsel for
such Fund or the Administrator, or arising out of
transactions or other activities of such Fund which
occurred prior to the
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commencement of this Agreement; provided, that no Fund
shall indemnify the Administrator for costs, expenses,
damages, liabilities or claims arising out of the
Administrator's own gross negligence, bad faith or
willful misconduct. This indemnity shall be a
continuing obligation of each Fund, its successors and
assigns, notwithstanding the termination of this
Agreement.
c. Actions taken or omitted in reliance on written
instructions, or upon any information, order,
indenture, stock certificate, power of attorney,
assignment, affidavit or other instrument believed by
the Administrator to be genuine or bearing the
signature of a person or persons believed to be
authorized to sign, countersign or execute the same, or
upon the opinion of legal counsel for a Fund or its own
counsel, shall be conclusively presumed to have been
taken or omitted in good faith. In no event shall the
Bank be required to accept or act upon any oral
instructions; regardless of the circumstances.
cc. COMPENSATION.
For the services provided hereunder, each Fund agrees to pay the
Administrator such compensation as is mutually agreed from time to time and such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, record retention costs, reproduction charges and transportation and
lodging costs) as are incurred by the Administrator in performing its duties
hereunder. Except as hereinafter set forth, compensation shall be calculated and
accrued daily and paid monthly. Each Fund authorizes the Administrator to debit
such Fund's custody account for all amounts due and payable hereunder. The
Administrator shall deliver to each Fund invoices for services rendered after
debiting such Fund's custody account with an indication that payment has been
made. Upon termination of this Agreement before the end of any month, the
compensation for such part of a month shall be prorated according to the
proportion which such period bears to the full monthly period and shall be
payable upon the effective date of termination of this Agreement. For the
purpose of determining compensation payable to the Administrator, each Fund's
net asset value shall be computed at the times and in the manner specified in
the Fund's Prospectus.
dd. TERM OF AGREEMENT.
This Agreement shall continue until terminated by either the Administrator
giving to a Fund, or a Fund giving to the Administrator, a notice in writing
specifying the date of such termination, which date shall be not less than 30
days after the date of the giving of
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such notice. Upon termination hereof, the affected Fund(s) shall pay to the
Administrator such compensation as may be due as of the date of such
termination, and shall reimburse the Administrator for any disbursements and
expenses made or incurred by the Administrator and payable or reimbursable
hereunder.
ee. FORCE MAJEURE.
The Administrator shall not be responsible or liable for any failure or
delay in the performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its reasonable
control, including without limitation, acts of God; earthquakes; fires; floods;
wars; civil or military disturbances; sabotage; epidemics; riots; interruptions,
loss or malfunctions of utilities, computer (hardware or software) or
communications service; accidents; labor disputes; acts of civil or military
authority or governmental actions; it being understood that the Administrator
shall use its best efforts to resume performance as soon as practicable under
the circumstances.
ff. AMENDMENT.
This Agreement may not be amended or modified in any manner except by a
written agreement executed by the Administrator and the Fund to be bound
thereby, and authorized or approved by such Fund's Board.
gg. ASSIGNMENT.
This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by any Fund without the written consent
of the Administrator, or by the Administrator without the written consent of the
affected Fund accompanied by the authorization or approval of such Fund's Board.
hh. GOVERNING LAW; CONSENT TO JURISDICTION.
This Agreement shall be construed in accordance with the laws of the State
of New York, without regard to conflict of laws principles thereof. Each Fund
hereby consents to the jurisdiction of a state or federal court situated in New
York City, New York in connection with any dispute arising hereunder. Customer
and Custodian each hereby irrevocably waives any and all rights to trial by jury
in any legal proceeding arising out of or relating to this Agreement. To the
extent that in any jurisdiction any Fund may now or hereafter be entitled to
claim, for itself or its assets, immunity from suit, execution, attachment
(before or after judgment) or other legal process, such Fund irrevocably agrees
not to claim, and it hereby waives, such immunity.
ii. SEVERABILITY.
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In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
jj. NO WAIVER.
Each and every right granted to the Administrator hereunder or under any
other document delivered hereunder or in connection herewith, or allowed it by
law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of the Administrator to exercise, and no delay in
exercising, any right will operate as a waiver thereof, nor will any single or
partial exercise by the Administrator of any right preclude any other or future
exercise thereof or the exercise of any other right.
kk. NOTICES.
All notices, requests, consents and other communications pursuant to this
Agreement in writing shall be sent as follows:
if to a Fund, at
_________________________________
_________________________________
_________________________________
Attention:_____________________________
if to the Administrator, at
The Bank of New York
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Vice President
or at such other place as may from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
ll. COUNTERPARTS.
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This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
mm. SEVERAL OBLIGATIONS.
The parties acknowledge that the obligations of the Funds hereunder are
several and not joint, that no Fund shall be liable for any amount owing by
another Fund and that the Funds have executed one instrument for convenience
only.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing instrument
to be executed by their duly authorized officers and their seals to be hereunto
affixed, all as of the day and year first above written.
By:
----------------------------
on behalf of each Fund
identified on Exhibit A
attached hereto
THE BANK OF NEW YORK
By:
----------------------------
Title:
10
EXHIBIT A
NAME OF FUND
------------
____________________________________________
SCHEDULE I
ADMINISTRATIVE SERVICES
1. Maintain each Fund's minute book and its general corporate records (other
than accounting books and records).
2. Monitor and document compliance by each Fund with its policies and
restrictions as delineated in its Prospectus.
3. Participate in the periodic updating of each Fund's Registration Statement
and Prospectus and, subject to approval by such Fund's Treasurer and legal
counsel, coordinate the preparation, filing, printing and dissemination of
periodic reports and other information to the SEC and the Fund's
shareholders, including annual and semi-annual reports to shareholders,
annual and semi-annual Form N-SAR and Form N-CSR, notices pursuant to Rule
24(f)-2 and proxy materials.
4. Prepare federal, state and local income tax returns for each Fund and
Series and file such returns upon the approval of the Funds' respective
independent accountants; monitor and report on Sub-Chapter M
qualifications; prepare and file all Form 1099s with respect to each Fund's
directors or trustees; monitor compliance with Section 4982 of the Internal
Revenue Code; calculate and maintain records pertaining to Original Issue
Discount and premium amortization as required; perform ongoing wash sales
review (i.e., purchases and sales of Fund investments within 30 days of
each other).
5. Prepare and, subject to approval of each Fund's Treasurer, disseminate to
such Fund's Board quarterly unaudited financial statements and schedules of
such Fund's investments and make presentations to the Board, as
appropriate.
6. Subject to approval of each Fund's Board, assist such Fund in obtaining
fidelity bond and E&O/D&O insurance coverage.
7. Prepare statistical reports for outside information services (e.g.,
IBC/Xxxxxxxx, ICI, Lipper Analytical and Morningstar).
8. Attend shareholder and Board meetings as requested from time to time.
9. Establish appropriate expense accruals, maintain expense files and
coordinate the payment of invoices.
10. Blue Sky Services
- Subject to approval of each Fund's Board and its legal counsel,
perform initial registration for Funds or Series in such states
as each Fund shall identify to the Administrator.
- Subject to approval of each Fund's Board and its legal counsel,
perform renewal registration for Funds or Series in such states
as each Fund shall identify to the Administrator.
- Receive nightly downloads of sales data from transfer agents.
- Update state/territory sales information for each Fund or Series.
- Create and maintain state/territory sales information worksheets
for each Fund or Series.
- Monitor changes in Blue Sky laws and procedures for all
registered states/territories.
- Subject to approval of each Fund's legal counsel, update filing
requirements for all law and procedural changes.
- Communicate directly with regulatory authorities in
states/territories as needed.
- Periodically attend Investment Company Institute (ICI) State
Liaison Committee meetings.
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