ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT ("Agreement"), is made this 26th day
of June, 1997, by and between Berkshire Capital Investment Trust, a Delaware
business trust (the "Fund"), and Berkshire Capital Holdings, Inc., a
California corporation (the "Administrator").
W I T N E S S E T H:
WHEREAS, the Fund is engaged in business as a non-diversified
open-end management investment company and is to be registered as such under
the Investment Company Act of 1940, as amended (the "Act"); and
WHEREAS, the Administrator is engaged in the business of rendering
administrative and supervisory services to investment companies; and
WHEREAS, the Fund desires to retain the Administrator to render
supervisory and corporate administrative services to the Fund in the manner
and on the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Employment of the Administrator. The Fund hereby employs the
Administrator to administer the affairs of the Fund subject to the direction
of the Board of Trustees and the officers of the Fund, for the period and on
the terms hereinafter set forth. The Administrator hereby accepts such
employment and agrees during such period to render the services and to assume
the obligations herein set forth for the compensation herein provided. The
Administrator shall devote such time as is necessary to carry out and shall at
all times faithfully, with diligence and to the best of its ability, perform
all of the duties required of it by the Fund hereunder.
2. Obligations of the Administrator. The Administrator shall, at its
expense, establish and maintain separate books of account and other records
reasonably appropriate for the operation of the business of the Fund,
including such entries and supporting documents as may be necessary or
appropriate for the purpose of showing all the transactions made or committed
on behalf of the Fund, and shall supervise all accounting procedures and
audits. All books and records shall be maintained in such form and detail as
may be required by applicable law. The Administrator shall oversee the
maintenance of all books and records with respect to the Fund's securities
transactions and the Fund's book of account in accordance with all applicable
federal and state laws and regulations. The Administrator, at its expense,
shall supply the Board of Trustees and officers of the Fund with all
statistical information and reports reasonably required by it and reasonably
available to the Administrator and furnish the Fund with office facilities,
including space, furniture and equipment and all personnel reasonably
necessary for the operation of the Fund. In compliance with the requirements
of Rule 31a-3 under the Act, the Administrator hereby agrees that any records
which it maintains for the Fund are the property of the Fund and further
agrees to surrender promptly to the Fund any of such records upon the Fund's
request. The Administrator further agrees to arrange for the preservation of
the records required to be maintained by Rule 31a-1 under the Act for the
periods prescribed by Rule 31a-2 under the Act.
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The Administrator covenants and agrees that it will maintain, or
will otherwise have available to it, facilities and staff, including
managerial, administrative and technical, as shall be necessary and adequate,
in all material respects, to perform properly its obligations hereunder.
3. Expenses of the Fund. The Administrator assumes and shall pay for
maintaining its staff and personnel, and shall at its own expense provide the
equipment, office space and facilities necessary to perform its obligations
under this Agreement. In addition, the Administrator assumes and shall pay all
ordinary expenses of the Fund, including, without limitation: (a)
organizational costs, (b) compensation of the Investment Adviser's personnel
and payment of other expenses in connection with provision of portfolio
management services, (c) compensation of any of the Fund's trustees, officers
or employees who are not interested persons of the Investment Adviser or its
affiliates, (d) fees and expenses of registering the Fund's shares under the
federal securities laws and of qualifying its shares under applicable state
Blue Sky laws, including expenses attendant upon renewing such registrations
and qualifications, (e) insurance premiums, (f) fidelity bonds, (g) accounting
and bookkeeping costs and expenses necessary to maintain the Fund's books and
records, (h) outside auditing and ordinary legal expenses, (i) all costs
associated with shareholders meetings and the preparation and dissemination of
proxy solicitation materials, (j) costs of printing and distribution of the
Fund's Prospectus and other shareholder information to existing shareholders,
(k) charges, if any, of custodian and dividend disbursing agent's fees, (l)
industry association fees, and (m) costs of independent pricing services and
calculation of daily net asset value. The Administrator may, at its
discretion, assume any additional expenses ordinarily assumed by the Fund when
it determines that such action is in the best interest of the shareholders.
Any extraordinary and non-recurring expenses shall be paid by the Fund.
4. Compensation. As compensation for the services rendered, the
facilities furnished and the expenses assumed by the Administrator, the Fund
shall pay to the Administrator, in arrears, within ten days after the end of
each calendar month, a fee, accrued each calendar day (including weekends and
holidays) at a rate of 0.50% per annum of the Fund's average daily net assets
up to $50 million, 0.45% of such assets from $50 million to $200 million,
0.40% of such assets from $200 million to $500 million, 0.35% of such assets
from $500 million to $1 billion, and 0.30% of such assets in excess of $1
billion for such month as determined and computed in accordance with the
description of the method of determination of net asset value contained in the
Fund's Prospectus and Statement of Additional Information.
5. Expense Limitation. If, in any fiscal year, the aggregate expenses
of the Fund (including advisory, administrative and transfer agency fees, but
excluding interest, local, state and federal taxes), exceed the expense
limitations of any state having jurisdiction over the Fund, then the fee paid
to the Administrator hereunder will be reduced pro rata (but not below zero)
to the extent required by such expense limitation. The Administrator will bear
its pro rata share of any such fee reduction based on the percentage that the
Administrator's fee bears to the total administrative and advisory fees paid
by the Fund to the Administrator and to the investment adviser of the Fund,
for the month and year in which this Agreement becomes effective or
terminates, there shall be an appropriate proration of said fee reduction
based on the number of days that the Agreement is in effect during such month
and year, respectively.
6. Inspection of Books and Records. Manager shall, upon reasonable
notice, permit the Fund and its duly authorized representatives to inspect and
to audit, for any purposes whatsoever, all of the books of account, documents,
records, papers and files in the custody or possession of the Administrator
relating in any manner to the business of the Fund. All expenses involved in
such audit or inspection will be borne by the Fund.
7. Independent Contractor. The Administrator is for all purposes
hereunder an independent contractor, free from control, direction or
supervision of the Fund and any persons engaged by the Administrator in the
performance of the Administrator's duties hereunder are solely the employees
or agents of the Administrator. The parties hereto intend and contemplate that
their relationship shall not be construed, nor shall any provision of this
Agreement be interpreted, so as to create a partnership or joint venture
between them or their respective successors in interest and, except as
expressly provided or authorized, neither party shall have the authority to
act for, represent or bind the other or otherwise be deemed an agent of the
other.
8. Activities of the Administrator. The services of the Administrator
to the Fund hereunder are not to be deemed exclusive and the Administrator
shall be free to render similar services to others. Subject to, and in
accordance with the Declaration of Trust and By-Laws of the Fund and Section
10(a) of the Act, it is understood that trustees, officers, agents and
beneficial holders of the Fund are or may be "interested persons" (as defined
in the Act) of the Administrator of its affiliates, and that directors,
officers, agents or shareholders of the Administrator of its affiliates are or
may be "interested persons" of the Fund as beneficial holders or otherwise.
9. Limitation of Liability. In the absence of willful misfeasance, bad
faith, gross negligence or reckless disregard of obligations or duties
hereunder on the part of the Administrator, the Administrator shall not be
liable to the Fund or to any beneficial holder of the Fund for any act or
omission in the course of, or in connection with, rendering services hereunder
or for any losses that may be sustained in the purchase, holding or sale of
any security.
10. Term. This Agreement shall become effective on the effective date of
the first public offering of the Fund's shares and shall continue in effect
for one year and from year to year thereafter only so long as specifically
approved annually by (i) the Fund's Board of Trustees and by a vote of the
holders of a majority of the outstanding voting securities of the Fund, or
(ii) a majority of the Trustees who are not parties to the Agreement or
"interested persons" (as defined in the Act) of any such party cast in person
at a meeting called for the purpose of voting on such approval.
11. Termination. This Agreement may be terminated at any time without the
payment of any penalty (i) by the Fund either by vote of the Board of Trustees
of the Fund or by vote of a majority of the outstanding voting securities of
the Fund, on 60 days written notice to the Administrator, or (ii) by the
Administrator on 60 days written notice to the Fund.
12. Amendments. This Agreement may be amended by the parties only if such
amendment is specifically approved by (i) the Board of Trustees of the Fund
and by a vote of the holders of a majority of the outstanding voting
securities of the Fund, or (ii) a majority of those trustees of the Fund who
are not parties to this Agreement or interested persons of any such party cast
in person at a meeting called for the purpose of voting on such approval.
13. Notices. Any notice required or desired to be given hereunder shall be
in writing and shall be considered effective (i) when delivered, if by
personal delivery, (ii) upon receipt, if sent by FAX, which FAX has been
telephonically confirmed, between the hours of 9:00 a.m. and 5:00 p.m. local
time of the recipient on a business day, or if not, at 9:00 a.m., local time
on the next business day, or (iii) upon the earlier of actual or first
attempted delivery, if mailed, postage prepaid, addressed as follows:
If to the Administrator:
Berkshire Capital Holdings, Inc.
000 Xxxxx Xxxxx, #000
Xxx Xxxx, Xxxxxxxxxx 00000-0000
FAX No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Fund:
Berkshire Capital Investment Trust
000 Xxxxx Xxxxx, #000
Xxx Xxxx, Xxxxxxxxxx 00000-0000
FAX No.: (000) 000-0000
Telephone No.: (000) 000-0000
or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 13.
14. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof, and supersedes all
prior negotiations or agreements, whether written or oral.
15. Inurement. This Agreement shall inure to the benefit of and be binding
upon the Fund, the Administrator, and their respective successors, transferees
and assigns.
16. Assignment. Except as otherwise expressly provided herein, the rights
and obligations of the parties pursuant to this Agreement may not be assigned
without the express written consent of the other party.
17. Severability. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative
for any reason by any court of competent jurisdiction, such holding,
declaration or pronouncement shall not adversely affect any other provision of
this Agreement, and this Agreement shall otherwise remain in full force and
effect and be enforced in accordance with its terms, including in a manner
that may be reasonably required in order to render any provision that has been
held, declared or pronounced void, voidable, invalid, unenforceable or
inoperative to become valid, enforceable and operative.
18. Counterparts. This Agreement shall be executed in counterparts, in
which case all such counterparts shall constitute one and the same agreement.
19. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of California.
20. Attorneys' Fees. In the event any proceeding is brought by one party
against the other to enforce or for the breach of any of the provisions of
this Agreement, the prevailing party shall be entitled in such proceeding and
in any appeal therefrom to recover reasonable attorneys' fees, together with
the costs of such proceeding therein incurred.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the date first written above.
ATTEST: BERKSHIRE CAPITAL INVESTMENT TRUST
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx III
By: ____________________________ By: _____________________________
Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx III,
Secretary President
ATTEST: BERKSHIRE CAPITAL HOLDINGS, INC.
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx III
By: ____________________________ By: _____________________________
Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx III,
Secretary Chairman & CEO
