FUND CCO AGREEMENT
Exhibit (h)(4)
AGREEMENT made as of January 27, 2011 by and between del Rey Global Investors Funds, a
Delaware statutory trust (the “Fund Company”), with its principal office and place of business at
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, and Foreside Compliance Services,
LLC, a Delaware limited liability company, with its principal office and place of business at Three
Xxxxx Xxxxx, Xxxxxxxx, Xxxxx 00000 (“Foreside”).
WHEREAS, the Fund Company is registered under the Investment Company Act of 1940, as amended
(the “1940 Act”), as an open-end management investment company and has created and issued shares in
one or more series (each such series a “Fund” and collectively, the “Funds”); and
WHEREAS, the Fund Company desires that Foreside perform certain compliance services and
Foreside is willing to provide those services on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, the
Fund Company and Foreside hereby agree as follows:
SECTION 1. PROVISION OF CCO; DELIVERY OF DOCUMENTS
(a) Foreside hereby agrees to provide a Chief Compliance Officer (“CCO”), as described in Rule
38a-1 of the 1940 Act (“Rule 38a-1”) to the Fund Company for the period and on the terms and
conditions set forth in this Agreement.
(b) In connection therewith, the Fund Company has delivered to Foreside copies of, and shall
promptly furnish Foreside with all amendments of or supplements to: (i) the Fund Company’s
Declaration of Trust and Bylaws (collectively, as amended from time to time, “Organizational
Documents”); (ii) the Fund Company’s current Registration Statement, as amended or supplemented,
filed with the U.S. Securities and Exchange Commission (“SEC”) pursuant to the Securities Act of
1933, as amended (the “Securities Act”), and/or the 1940 Act (the “Registration Statement”)
relating to each Fund; (iii) the current Prospectus and Statement of Additional Information
(collectively, as currently in effect and as amended or supplemented, the “Prospectus”) in place
for each of the Funds; (iv) each plan of distribution or similar document under Rule 12b-1 under
the 1940 Act and each current shareholder service plan or similar document, that in each case has
been adopted by the Fund Company’s Board of Trustees (the “Board”) with respect to any or all of
its Funds; (v) copies of the Fund Company’s current annual and semi-annual reports to shareholders;
and (vi) all compliance and risk management policies, programs and procedures adopted by the Fund
Company with respect to the Funds. The Fund Company shall deliver to Foreside a certified copy of
the resolution of the Board appointing the CCO and authorizing the execution and delivery of this
Agreement.
SECTION 2. DUTIES OF FORESIDE AND CCO
(a) Foreside shall make available a person who is qualified to serve as a CCO under Rule
38a-1, is competent and knowledgeable regarding the Federal securities laws and has the requisite
knowledge and experience to administer the Fund Company’s compliance program under Rule 38a-1 to
act as the Fund Company’s CCO. Foreside hereby acknowledges that the Fund Company is relying on
Foreside to provide a CCO with such competence, qualifications, knowledge and experience. The
election of any such person to act as the Fund Company’s CCO shall be subject to the approval of
the Board. Foreside’s responsibility for the activities of the CCO are limited to the extent that
the Board shall make all decisions regarding the designation and termination of the CCO and shall
review and approve the compensation of the CCO as provided by Rule 38a-1.
(b) With respect to the Fund Company and each Fund (whether currently in existence
or created in the future), the CCO shall:
(i) report directly to the Board;
(ii) review and administer the Fund Company’s compliance program policies and
procedures and review and oversee those policies and procedures of the adviser,
administrator, principal underwriter, custodian and transfer agent (collectively,
“Service Providers”) that relate to the Fund Company or its Funds;
(iii) diligently administer the CCO’s oversight responsibility by taking steps to
assure himself/herself that each Service Provider has implemented effective
compliance policies and procedures administered by competent personnel;
(iv) be familiar with each Service Provider’s operations and understand those
aspects of each Service Provider’s operations that expose the Fund or Fund Company
to compliance risks;
(v) maintain an active working relationship with each Service Provider’s compliance
personnel;
(vi) conduct periodic reviews of the Fund Company’s compliance program and
incorporate any new or changed regulations, best practice recommendations or other
guidelines that may be appropriate;
(vii) review, no less frequently than annually, the adequacy of the policies and
procedures of the Fund Company, each Fund and their respective Service Providers and
the effectiveness of their implementation and advise the Board of any changes deemed
necessary by the CCO;
(viii) design testing methods for the compliance program policies and procedures of
the Fund Company and the Funds;
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(ix) perform and document periodic testing of certain key control procedures (as
appropriate to the circumstances), including reviewing reports, investigating
exceptions, and making inquiries of Fund Company management and Service Providers;
(x) conduct no less than annual periodic site visits to the adviser and other
Service Providers, and more frequently as deemed necessary by the Board or the
applicable Fund, including following up with the particular Service Provider as to
the resolution or status of any compliance issues identified and provide updates to
the Board no less frequently than quarterly;
(xi) provide the Board with the Fund certifications required by Rule 17j-1 under the
1940 Act;
(xii) prepare CCO Reports for the Board and attend Board meetings quarterly and as
requested;
(xiii) keep the Board apprised of significant compliance events at the Fund, the
Fund Company or their Service Providers and advise the Board of changes deemed
necessary by the CCO in the Fund Company’s compliance program;
(xiv) promptly bring to the Board’s attention any serious compliance issues; and
(xv) no less than quarterly, meet separately, in person to the extent required
by the Board, with those members of the Board that are not “interested persons” of
the Fund Company.
(c) Foreside may provide other services and assistance relating to the affairs of the Fund
Company as the Fund Company may, from time to time, request subject to mutually acceptable
compensation and implementation agreements.
(d) Foreside shall maintain records relating to its services, such as compliance policies and
procedures, relevant Board presentations, annual reviews, and other records, as are required to be
maintained under the 1940 Act and Rule 38a-1 thereunder (collectively, the “Records”). Such
Records with respect to the Fund Company and each Fund shall be maintained in the manner and for
the periods as are required under such laws and regulations. The Fund Company, or the Fund
Company’s authorized representatives, shall have access to the Records at all times during
Foreside’s normal business hours. Upon the reasonable request of the Fund Company, copies of any
of the Records shall be provided promptly by Foreside to the Fund Company or its authorized
representatives at the Fund Company’s expense. The Records shall be the property of the Fund
Company and each Fund, as applicable, and shall be promptly surrendered upon the termination of the
Agreement or otherwise on written request. Records shall be surrendered in usable machine-readable
form. Foreside shall not have the right to retain copies of such records without the Fund Company
and the respective Fund’s prior written consent, except that Foreside may retain all records that
it is required to maintain pursuant to applicable legal and regulatory requirements without
obtaining the consent of any Fund or the
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Fund Company. Any records retained by Foreside shall be subject to observance of its
confidentiality obligations under this Agreement.
(e) Nothing contained herein shall be construed to require Foreside to perform any service
that could cause Foreside to be deemed an investment adviser for purposes of the 1940 Act or the
Investment Advisers Act of 1940, as amended, or that could cause any Fund to act in contravention
of such Fund’s Prospectus or any provision of the 1940 Act. Further, while Foreside will provide
consulting and other services under this Agreement to assist the Fund Company and the Funds with
respect to their respective obligations under and compliance with various laws and regulations,
Fund Company understands and agrees that Foreside is not a law firm and that nothing contained
herein shall be construed to create an attorney-client relationship between Foreside and Fund
Company or to require Foreside to render legal advice or otherwise engage in the practice of law in
any jurisdiction. All references to any law in this Agreement shall be deemed to include reference
to the applicable rules and regulations promulgated under authority of the law and all official
interpretations of such law or rules or regulations.
(f) In order for Foreside or the CCO to perform the services required by this Section 2, the
Fund Company shall (1) instruct all Service Providers to furnish any and all information relating
to the Funds or the services the Service Provider provides to the Funds within their possession to
Foreside as reasonably requested by Foreside, and assist Foreside in obtaining any such information
as reasonably necessary and (2) deliver, or cause to be delivered, to Foreside upon Foreside’s
reasonable request any other documents within the Fund Company’s possession that would be necessary
to enable Foreside to perform the services described in this Agreement.
SECTION 3. STANDARD OF CARE; LIMITATION OF LIABILITY; INDEMNIFICATION
(a) Foreside shall be under no duty to take any action except as specifically set forth herein
or as may be specifically agreed to by Foreside in writing. Foreside shall use its best judgment
and efforts in rendering the services described in this Agreement and shall not be liable to the
Fund Company, any Fund or any of the Funds’ shareholders for any action or inaction of Foreside or
the CCO relating to any event whatsoever in the absence of willful misfeasance, willful default,
willful misconduct, bad faith, fraud or gross negligence on the part of Foreside or the CCO or any
of their respective agents or employees or the reckless disregard by Foreside, the CCO or any of
their respective agents or employees of the duties and obligations set forth in this Agreement
(collectively, “Disabling Conduct”). Further, neither Foreside nor the CCO shall be liable to the
Fund Company, any Fund or any of the Funds’ shareholders for any action taken, or failure to act,
in good faith reliance upon: (i) the advice and opinion of Fund Company counsel; and/or (ii) any
certified copy of any resolution of the Board. Neither Foreside nor the CCO shall be under any
duty or obligation to inquire into the validity or invalidity or authority or lack thereof of any
statement, oral or written instruction, resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice, consent, order, or any other document
or instrument which Foreside or the CCO reasonably believe in good faith to be genuine.
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(b) The Fund Company agrees to indemnify and hold harmless Foreside and its directors,
officers, and employees and any person who controls Foreside within the meaning of Section 15 of
the Securities Act (any of Foreside, its respective officers, employees and directors or such
control persons, for purposes of this paragraph, a “Foreside Indemnitee”) against any loss,
liability, claim, damages or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damages or expense and reasonable counsel fees incurred in
connection therewith) arising out of or based upon (i) Foreside providing services to the Funds in
accordance with this Agreement or (ii) the breach of any obligation, representation or warranty
under this Agreement by the Fund Company on behalf of such Fund.
In no case (i) is the indemnity of the Fund Company in favor of any Foreside Indemnitee to be
deemed to protect the Foreside Indemnitee against any liability to which the Foreside Indemnitee
would otherwise be subject by reason of willful misfeasance, willful default, willful misconduct,
bad faith, fraud or gross negligence on the part of the Foreside Indemnitee or its agents or
employees or by reason of the reckless disregard by the Foreside Indemnitee or its agents or
employees of the duties and obligations under this Agreement, or (ii) is the Fund Company or any
Fund to be liable with respect to any claim made against any Foreside Indemnitee unless the
Foreside Indemnitee notifies the Fund Company in writing of the claim within a reasonable time
after the summons or other first written notification giving information of the nature of the claim
are served upon the Foreside Indemnitee (or after the Foreside Indemnitee receives notice of
service on any designated agent).
Failure to notify the Fund Company of any claim shall not relieve the Fund Company from any
liability that it may have to any Foreside Indemnitee against whom such action is brought unless
failure or delay to so notify the Fund Company prejudices the Fund Company’s ability to defend
against such claim. The Fund Company shall be entitled to participate at its own expense in the
defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but
if the Fund Company elects to assume the defense, the defense shall be conducted by counsel chosen
by it and reasonably satisfactory to the Foreside Indemnitee in the suit. In the event the Fund
Company elects to assume the defense of any suit and retain counsel, the Foreside Indemnitee shall
bear the fees and expenses of any additional counsel retained by them. If the Fund Company does not
elect to assume the defense of any suit, it will reimburse the Foreside Indemnitee in the suit for
the reasonable fees and expenses of any counsel retained by them; provided that the Fund Company
shall not be liable for the fees and expenses of more than one counsel. The Fund Company shall not
be liable for any settlement of any such suit entered into without its prior written consent, which
consent shall not be unreasonably withheld.
(c) Foreside agrees to indemnify and hold harmless the Fund Company, each Fund, and each of
their respective Trustees, officers and employees and any person who controls the Fund Company or a
Fund within the meaning of Section 15 of the Securities Act (for purposes of this paragraph, the
Fund Company, Funds, and each of their respective Trustees, officers, employees and their
controlling persons are collectively referred to as the “Fund Indemnitees”) against any loss,
liability, claim, damages or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damages or expense and reasonable counsel fees incurred in
connection therewith) arising out of or based upon (i) the breach of any duty, obligation,
representation or warranty under this Agreement by Foreside and/or the CCO,
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or (ii) Foreside’s and/or the CCO’s failure to comply in any material respect with applicable
securities laws.
In no case (i) is the indemnity of Foreside in favor of any Fund Indemnitee to be deemed to
protect any Fund Indemnitee against any liability to which such Fund Indemnitee would otherwise be
subject by reason of willful misfeasance, willful default, willful misconduct, bad faith, fraud or
gross negligence on the part of the Fund Indemnitee or its agents or employees or by reason of the
reckless disregard by the Fund Indemnitee or its agents or employees of the duties and obligations
under this Agreement, or (ii) is Foreside to be liable with respect to any claim made against any
Fund Indemnitee unless the Fund Indemnitee notifies Foreside in writing of the claim within a
reasonable time after the summons or other first written notification giving information of the
nature of the claim are served upon the Fund Indemnitee (or after the Fund Indemnitee has received
notice of service on any designated agent).
Failure to notify Foreside of any claim shall not relieve Foreside from any liability that it
may have to the Fund Indemnitee against whom such action is brought unless failure or delay to so
notify Foreside prejudices Foreside’s ability to defend against such claim. Foreside shall be
entitled to participate at its own expense in the defense or, if it so elects, to assume the
defense of any suit brought to enforce any claims, but if Foreside elects to assume the defense,
the defense shall be conducted by counsel chosen by it and reasonably satisfactory to the Fund
Indemnitee in the suit. In the event that Foreside elects to assume the defense of any suit and
retain counsel, the Fund Indemnitee shall bear the fees and expenses of any additional counsel
retained by them. If Foreside does not elect to assume the defense of any suit, it will reimburse
the Fund Indemnitee in the suit for the reasonable fees and expenses of any counsel retained by
them; provided that the Foreside shall not be liable for the fees and expenses of more than one
counsel. Foreside shall not be liable for any settlement of any such suit entered into without its
prior written consent, which consent shall not be unreasonably withheld.
(d) No indemnified party shall settle any claim against it for which it intends to seek
indemnification from the indemnifying party, under the terms of Section 3(b) or 3(c) above, without
prior written notice to and consent from the indemnifying party, which consent shall not be
unreasonably withheld. No indemnified or indemnifying party shall settle any claim unless the
settlement contains a full release of liability with respect to the other party in respect of such
action.
(e) The Fund Company, and not Foreside, shall be solely responsible for approval of the
designation of the CCO, as well as for removing the CCO, as the case may be, from his or her
responsibilities related to the Funds in accordance with Rule 38a-1.
(f) The Fund Company agrees that Foreside, its employees, officers and directors shall not be
liable to the Fund Company for any actions, damages, claims, liabilities, costs, expenses or losses
in any way arising out of or relating to the services described in this Agreement for an aggregate
amount in excess of the fees paid by the Fund Company to Foreside in performing services hereunder,
provided that such actions, damages, claims, liabilities, costs, expenses or losses are not the
result of, or arise out of, the willful misfeasance, willful default, willful misconduct, bad
faith, fraud or gross negligence on the part of Foreside or the CCO or
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any of their respective agents or employees or the reckless disregard by Foreside, the CCO or
any of their respective agents or employees of the duties and obligations set forth in this
Agreement. The provisions of this paragraph shall apply regardless of the form of action, damage,
claim, liability, cost, expense or loss, whether in contract, statute, tort (including, without
limitation, negligence) or otherwise.
In no event shall either party or their respective employees, officers and directors be liable
for any consequential or special losses or damages suffered by the other party, whether or not the
likelihood of such losses or damages was known by the party.
(g) Foreside shall not be liable for the errors of other service providers to the Fund Company
or their systems.
SECTION 4. REPRESENTATIONS AND WARRANTIES
(a) Foreside covenants, represents and warrants to the Fund Company and each Fund that:
(i) it is a limited liability company duly organized and in good standing under the
laws of the State of Delaware;
(ii) it is duly qualified to carry on its business in the State of Maine;
(iii) it is empowered under applicable laws and by its operating agreement to enter
into this Agreement and perform its duties under this Agreement;
(iv) all requisite corporate proceedings have been taken to authorize it to enter
into this Agreement and perform its duties under this Agreement;
(v) it has access to the necessary facilities, equipment, and personnel with the
requisite knowledge and experience to assist the CCO in the performance of his or
her duties and obligations under this Agreement;
(vi) this Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of Foreside, enforceable against Foreside in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting the rights and remedies of creditors and secured
parties;
(vii) it shall make available a person who is competent and knowledgeable regarding
the federal securities laws and is otherwise reasonably qualified to act as a CCO
and who will, in the exercise of his or her duties to the Fund Company and the
Funds, act in good faith and in a manner reasonably believed by him or her to be in
the best interests of the Funds and comply with all Fund Company and Fund compliance
policies and procedures, including any applicable code of ethics;
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(viii) it shall compensate the CCO fairly, subject to the Board’s right under any
applicable regulation (e.g., Rule 38a-1) to approve the designation, termination and
level of compensation of the CCO. In addition, it shall not retaliate against the
CCO should the CCO inform a Fund, Fund Company management, the Board or any Board
member of a compliance failure or take aggressive action to ensure compliance with
the federal securities laws by the Fund Company, a Fund or a Service Provider;
(ix) it shall report to the Board promptly if it learns of CCO Disabling Conduct or
in the event the CCO is terminated as a CCO by another fund company or if the CCO is
terminated by Foreside or resigns as an employee, officer or director of Foreside;
and
(x) it shall report to the Board if at any time the CCO is subject to the
disqualifications set forth in Section 15(b)(4) of the Exchange Act or Section 9 of
the 1940 Act.
(b) The Fund Company covenants, represents and warrants to Foreside that:
(i) it is a statutory trust duly organized and in good standing under the laws of
the State of Delaware;
(ii) it is empowered under applicable laws and by its Organizational Documents to
enter into this Agreement and perform its duties under this Agreement;
(iii) all requisite corporate proceedings have been taken to authorize it to enter
into this Agreement and perform its duties under this Agreement;
(iv) it is an open-end management investment company registered under the 1940 Act;
(v) this Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of the Fund Company, enforceable against the Fund Company in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and remedies
of creditors and secured parties;
(vi) a registration statement under the Securities Act and the 1940 Act has been
filed and, to the extent necessary, appropriate State securities law filings will be
made with respect to the Funds;
(vii) the CCO is currently covered by the Fund Company’s Directors & Officers
Liability Insurance Policy (the “Policy”), and the Fund Company shall use reasonable
efforts to cause that such coverage be (a) reinstated should the Policy be
cancelled; (b) continued after the CCO ceases to serve as an officer of
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the Fund Company on substantially the same terms as such coverage is provided for
all other Fund Company officers after such persons are no longer officers of the
Fund Company; and (c) continued in the event the Fund Company merges or terminates,
on substantially the same terms as such coverage is provided for all other Fund
Company officers (and for a period of no less than six years). The Fund Company
shall provide Foreside with proof of current coverage, including a copy of the
Policy, and shall notify Foreside immediately should the Policy be cancelled or
terminated; and
(viii) the CCO is a named officer in the Fund Company’s corporate resolutions and
subject to the provisions of the Fund Company’s Organizational Documents regarding
indemnification of its officers.
SECTION 5. COMPENSATION AND EXPENSES
(a) In consideration of the compliance services provided by Foreside pursuant to this
Agreement, the Fund Company shall pay Foreside the fees and expenses set forth in Appendix
A hereto, which fees and expenses shall be allocated to the Funds on a pro rata basis; provided
that if a particular expense was incurred on behalf of a Fund, it shall be paid by that Fund.
All fees payable hereunder shall be accrued daily by each Fund and shall be payable monthly in
arrears on the first business day of each calendar month for services performed during the prior
calendar month. All reasonable out-of-pocket charges incurred by Foreside shall be paid as
incurred. If fees begin to accrue in the middle of a month or if this Agreement terminates before
the end of any month, all fees for the period from such mid-month date to the end of that month or
from the beginning of that month to the date of termination, as the case may be, shall be prorated
according to the proportion that the period bears to the full month in which the effectiveness or
termination occurs. Upon the termination of this Agreement, each Fund shall pay to Foreside such
compensation as shall be due and payable by such Fund as of the effective date of termination.
(b) The parties to this Agreement acknowledge that the CCO, as an officer of the Fund Company,
is entitled to rely, with respect to questions of law relating to the services provided hereunder
only as such questions relate to the Funds or the Fund Company, upon the advice and opinion of Fund
Company counsel provided to Fund Company. The costs of any such advice or opinion shall be borne by
the Fund Company.
(c) The CCO is serving solely as an officer of the Fund Company and neither the CCO
nor Foreside shall be responsible for, or have any obligation to pay, any of the expenses of the
Fund Company or any of its Funds. All expenses of a Fund shall be the sole obligation of such
Fund, which shall pay or cause to be paid all Fund expenses.
(d) Notwithstanding any other provision in this Agreement, no amounts under this Agreement
shall be payable or begin to accrue with respect to a Fund, until the earlier of (i) the closing of
the Fund’s offering or subscription period and (ii) the offering of the Fund’s shares to the public
after the effectiveness of its Registration Statement. If for any reason a Fund does not close the
offering of its shares after a subscription period or a Fund’s Registration Statement
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either does not become effective or the Fund does not offer and sell its shares to the public after
its Registration Statement becomes effective, neither the Fund Company nor any Fund shall be
responsible for the payment of any amounts under this Agreement, including fees, out-of pocket
expenses or additional charges of Foreside. Notwithstanding the foregoing, each Fund’s investment
adviser may pay any out-of-pocket expenses accrued by Foreside if the Fund Company or any Fund is
not obligated to pay such amount pursuant to this Section.
SECTION 6. EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT
(a) This Agreement shall become effective on the date indicated above or at such time as
Foreside commences providing services under this Agreement, whichever is later (the “Effective
Date”). Upon the Effective Date, this Agreement shall constitute the entire agreement between the
parties and shall supersede all previous agreements between the parties, whether oral or written.
(b) This Agreement shall continue in effect until terminated in accordance with the provisions
hereof.
(c) This Agreement may be terminated at any time, without the payment of any penalty (i) by
the Board on thirty (30) days’ written notice to Foreside or (ii) by Foreside on sixty (60) days’
written notice to the Fund Company, provided, however, that the Board will have the right and
authority to remove the individual designated by Foreside as the Fund Company’s CCO at any time,
with or without cause, without payment of any penalty. In this case, Foreside will designate
another employee of Foreside, subject to approval of the Board and the disinterested Trustees, to
serve as temporary CCO until the earlier of: (i) the designation of a new permanent CCO; or (ii)
the termination of this Agreement.
(d) Should the employment of the individual designated by Foreside to serve as the Fund
Company’s CCO end or be terminated for any reason, Foreside will immediately designate another
qualified individual, subject to ratification by the Board and the disinterested Trustees, to serve
as temporary CCO until the earlier of: (i) the designation, and approval by the Board, of a new
permanent CCO; or (ii) the termination of this Agreement.
(e) The provisions of Sections 3, 6(e), 7, 10 and 11 shall survive any termination of this
Agreement.
(f) This Agreement and the rights and duties under this Agreement shall not be assignable by
either Foreside or the Fund Company except by the specific written consent of the other party. All
terms and provisions of this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the respective successors and permitted assigns of the parties hereto.
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SECTION 7. CONFIDENTIALITY
Each party shall comply with the laws and regulations applicable to it in connection with its
use of confidential information, including, without limitation, Regulation S-P (if applicable).
Foreside agrees to treat all records and other information related to the Fund Company and any Fund
as proprietary information of the Fund Company or such Fund and, on behalf of itself and its
employees, to keep confidential all such information, except that Foreside may release such other
information (a) as approved in writing by the Fund Company or a Fund, which approval shall not be
unreasonably withheld and may not be withheld where Foreside is advised by counsel that it may be
exposed to civil or criminal contempt proceedings for failure to release the information (provided,
however, that Foreside shall seek the approval of the Fund Company or the Fund as promptly as
possible so as to enable the Fund Company or the Fund to pursue such legal or other action as it
may desire to prevent the release of such information) or (b) when so requested by the Fund Company
or a Fund.
SECTION 8. FORCE MAJEURE
Neither party shall be responsible or liable for any failure or delay arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control including, without
limitation, acts of civil or military authority, national emergencies, fire, mechanical breakdowns,
flood or catastrophe, acts of God, insurrection, war, terrorism, riots or failure of the mails,
transportation, communication system or power supply. In addition, to the extent Foreside’s
obligations hereunder are to oversee or monitor the activities of third parties, Foreside shall not
be liable for any failure or delay in the performance of Foreside’s duties caused, directly or
indirectly, by the failure or delay of such third parties in performing their respective duties or
cooperating reasonably and in a timely manner with Foreside.
SECTION 9. ACTIVITIES OF FORESIDE
Except to the extent necessary to perform Foreside’s obligations under this Agreement, nothing
herein shall be deemed to limit or restrict Foreside’s right, or the right of any of Foreside’s
managers, officers or employees who also may be a director, trustee, officer or employee of the
Fund Company (including, without limitation, the CCO), or who are otherwise affiliated persons of
the Fund Company, to engage in any other business or to devote time and attention to the management
or other aspects of any other business, whether of a similar or dissimilar nature, or to render
services of any kind to any other corporation, trust, firm, individual or association.
SECTION 10. COOPERATION WITH INDEPENDENT PUBLIC ACCOUNTANTS
Foreside shall cooperate with the each Fund’s independent public accountants and shall take
reasonable action to make all necessary information available to the accountants for the
performance of such accountants’ duties.
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SECTION 11. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Fund Company and the shareholders of the Funds shall not be liable for any
obligations of the Fund Company or a Fund under this Agreement, and Foreside agrees that, in
asserting any rights or claims under this Agreement, it shall look only to the assets and property
of the Fund Company and the Funds.
SECTION 12. MISCELLANEOUS
(a) This Agreement shall be governed by, and the provisions of this Agreement shall be
construed and interpreted under and in accordance with, the laws of the State of Delaware, without
regard to the conflict of laws provisions thereof.
(b) This Agreement may be executed by the parties hereto in any number of counterparts, and
all of the counterparts taken together shall be deemed to constitute one and the same instrument.
(c) If any part, term or provision of this Agreement is held to be illegal, in conflict with
any law or otherwise invalid, the remaining portion or portions shall be considered severable and
not be affected, and the rights and obligations of the parties shall be construed and enforced as
if the Agreement did not contain the particular part, term or provision held to be illegal or
invalid. This Agreement shall be construed as if drafted jointly by both Foreside and Fund Company
on behalf of the Funds and no presumptions shall arise favoring any party by virtue of authorship
of any provision of this Agreement.
(d) Section headings in this Agreement are included for convenience only and are not to be
used to construe or interpret this Agreement.
(e) Any notice required or permitted to be given hereunder by either party to the other shall
be deemed sufficiently given if in writing and personally delivered or sent by facsimile or
registered, certified or overnight mail, postage prepaid, addressed by the party giving such notice
to the other party at the address furnished below unless and until changed by Foreside or the Fund
Company, as the case may be. Notice shall be given to each party at the following address:
(i) To Foreside:
|
(ii) To Fund Company: | ||||
Foreside Compliance Services, LLC
|
del Rey Global Investors Funds | ||||
Three Canal Plaza, Suite 100
|
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000 | ||||
Xxxxxxxx, XX 00000 |
Xxx Xxxxxxx, XX 00000 | ||||
Phone: (000) 000-0000 |
|||||
Fax: (000) 000-0000 |
Phone: (000) 000-0000 | ||||
(f) Invoices for fees and expenses due to Foreside hereunder and as set forth in Appendix
A hereto shall be sent by Foreside to the address furnished below unless and until changed by
the Fund Company (Fund Company to provide reasonable advance notice of any change of billing
address to Foreside):
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del Rey Global Investors Funds
Attn: Xxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Email: xxxxxxxx@xxxxxxxxxxxx.xxx
Attn: Xxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Email: xxxxxxxx@xxxxxxxxxxxx.xxx
(g) Nothing contained in this Agreement is intended to or shall require Foreside, in any
capacity hereunder, to perform any functions or duties on any day other than a Fund Company
business day. Functions or duties normally scheduled to be performed on any day which is not a
Fund Company business day shall be performed on, and as of, the next Fund Company business day,
unless otherwise required by law.
(h) The term “affiliate” and all forms thereof used herein shall have the meanings ascribed
thereto in the 1940 Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their
names and on their behalf by and through their duly authorized officers, as of the day and year
first above written.
DEL REY GLOBAL INVESTORS FUNDS |
||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Chairman and Chief Financial Officer | |||
FORESIDE COMPLIANCE SERVICES, LLC |
||||
By: | /s/ Xxxxxxx X. Xxxxx | |||
Xxxxxxx X. Xxxxx, President | ||||
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