ADMINISTRATION AGREEMENT
THIS
ADMINISTRATION AGREEMENT (this “Agreement”) is made
as of the 30th day of
May, 2008 (the “Effective Date”), by
and between Wilshire Variable Insurance Trust, a Delaware statutory trust (the
“Trust”), and
SEI Investments Global Funds Services, a statutory trust formed under the laws
of the State of Delaware (the “Administrator”).
WHEREAS,
Trust is an open-end management investment company registered under the 1940
Act, consisting of the Portfolios, each of which may consist of one or more
classes of Shares; and
WHEREAS,
Trust desires the Administrator to provide, and the Administrator is willing to
provide, administrative and accounting services to such Portfolios of Trust on
the terms and conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, Trust and the Administrator hereby agree as follows:
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SECTION
1
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DEFINITIONS
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1.01
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“1933 Act” means
the Securities Act of 1933, as
amended.
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1.02
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“1934 Act” means
the Securities Exchange Act of 1934, as
amended.
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1.03
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“1940 Act” means
the Investment Company Act of 1940, as
amended.
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1.04
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“AML Laws” shall
have the meaning given to such term in Section 12.12
of this Agreement.
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1.05
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“Confidential
Information” shall have the meaning given to such term in Section 11.01
of this Agreement.
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1.06
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“Conversion”
means the processes and activities required to transfer the books and
records of Trust from Trust or its prior administrator, import Trust’s
data and files into the Administrator’s system and such other processes
and activities identified as the responsibility of the Administrator in
accordance with the Conversion
Plan.
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1.07
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“Conversion
Plan” shall have the meaning given to such term in Section 2.05 of
this Agreement.
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1.08
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“Core Services”
shall mean the Services described in Schedule II
related to Portfolio accounting and fund
accounting;
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1.09
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“Disclosing
Party” shall have the meaning given to such term in Section 11.01
of this Agreement.
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1.10
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“Initial Term”
shall have the meaning given to such term in Section 9.01 of
this Agreement.
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1.11
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“Interested
Party” or “Interested
Parties” means the Administrator, its subsidiaries and its
affiliates and each of their respective officers, directors, employees,
agents, delegates and associates.
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1.12
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“Interests”
means any partnership interest in, membership interest in, shares of stock
of or other equity interest in, as the case may be,
Trust.
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1.13
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“Investments”
shall mean such cash, securities and all other assets and property of
whatsoever nature now owned or subsequently acquired by or on behalf of
Trust.
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1.14
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“Law” means any
treaty, statute, regulation, by-law, ordinance or subordinate legislation
in force from time to time (including the 1933 Act, the 1934 Act, the 1940
Act and AML Laws, which have direct effect); the common law and the law of
equity; any binding court order, judgment or decree; and any applicable
direction, policy, rule or order that is given in writing by a
governmental body (including the rules of any stock exchange), in each
case enforceable by law.
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1.15
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“Live Date”
means the date on which Trust is converted onto the Administrator’s system
and the Administrator begins calculating the Portfolios’ official net
asset values (“NAV”).
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1.16
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“Organizational
Documents” means, as applicable, the articles of incorporation,
declaration of trust, certificate of formation, memorandum of association,
partnership agreement, bylaws or other similar documentation setting forth
the respective rights and obligations of directors, managers and Interest
holders in Trust.
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1.17
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“Person” shall
mean any natural person, partnership, estate, association, custodian,
nominee, limited liability company, corporation, trust or other legal
entity.
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1.18
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“Portfolio”
means the series portfolios set forth in Schedule I,
attached hereto, as the same may be amended from time to
time.
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1.19
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“Pricing Source”
shall have the meaning given to such term in Section 6 of
this Agreement.
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1.20
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“Receiving
Party” shall have the meaning given to such term in Section 11.01
of this Agreement.
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1.21
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“Renewal Term”
shall have the meaning given to such term in Section 9.01 of
this Agreement.
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1.22
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“Shares” shall
refer to the shares of beneficial interest in any
Portfolio.
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1.23
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Unless
the context otherwise requires and except as otherwise specified in this
Agreement, the term “Trust” shall
include, as applicable, a trustee or trustees, or other Person having
similar status or performing similar functions, as the case may be, acting
on behalf of Trust.
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1.24
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“Trust
Materials” means any valuation policy, prospectus, registration
statement, statement of additional information, proxy solicitation and
tender offer materials, annual or other periodic report of Trust or any
advertising, marketing, shareholder communication, or promotional material
generated by Trust or its investment adviser from time to time, as
appropriate, including all amendments or supplements
thereto.
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1.25
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“Valuation
Information” shall have the meaning given to such term in Section 6 of
this Agreement.
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SECTION
2
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APPOINTMENT
AND CONTROL
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2.01
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Services. Trust
hereby appoints the Administrator to be, and the Administrator agrees to
act as, the administrative agent of Trust for the term and subject to the
provisions hereof. The Administrator shall perform (and may
delegate or sub-contract, as provided below) the services set forth in
this Agreement, including the services set forth in Schedule II,
which may be amended from time to time in writing by the parties (“Services”). In
performing its duties under this Agreement, the Administrator will act in
all material respects in accordance with Trust Materials as they may be
amended (provided copies of the same are delivered to the
Administrator).
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2.02
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Authority. Each
of the activities engaged in under the provisions of this Agreement by the
Administrator on behalf of Trust shall be subject to the overall direction
and control of Trust or any Person authorized to act on Trust’s behalf
(including, without limitation, the board of trustees of Trust); provided,
however, that the Administrator shall have the general authority to do all
acts deemed in the Administrator’s good faith belief to be necessary and
proper to perform its obligations under this Agreement. In
performing its duties hereunder, the Administrator shall exercise
reasonable care and diligence and observe and generally comply with the
applicable prospectus, all applicable resolutions and/or directives of
Trust’s board of trustees of which it has notice, and applicable laws
which may from time to time apply to the Services rendered by the
Administrator. The Administrator (i) shall not have or be
required to have any authority to supervise the investment or reinvestment
of the securities or other properties which comprise the assets of Trust
and (ii) shall not provide any investment advisory services to Trust, and
shall have no liability related to the
foregoing.
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2.03
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Third Parties;
Affiliates. Except with respect to Core Services, the
Administrator may delegate to, or sub-contract with, third parties or
affiliates administrative or other functions it deems necessary to perform
its obligations under this Agreement; provided, however, all fees and
expenses incurred in any delegation or sub-contract shall be paid by the
Administrator and the Administrator shall remain responsible to Trust for
the acts and omissions of such other entities as if such acts or omissions
were the acts or omissions of the Administrator. The
Administrator shall not delegate to, or sub-contract with, third parties
or affiliates any Core Services without Trust’s prior consent, which
consent shall not be unreasonably withheld, conditioned or
delayed. Trust acknowledges that during the term of this
Agreement, the services to be performed by the Administrator may be
completed by one or more of the Administrator’s affiliates or third
parties located in or outside of the United States of
America.
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2.04
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Trust
Data. Trust shall be solely responsible for the
accuracy, completeness, and timeliness of all data and other information
provided to the Administrator by or on behalf of Trust pursuant to this
Agreement (including, without limitation, (i) prices, (ii) sufficient
transaction supporting documentation, (iii) detailed accounting
methodologies with respect to Trust’s Investments as approved by Trust’s
auditors, and (iv) trade and settlement information from custodians)
(collectively, “Trust
Data”). All Trust Data shall be provided to the
Administrator on a timely basis and in a format and medium reasonably
requested by the Administrator from time to time. Trust shall
have an ongoing obligation to promptly update all Trust Data so that such
information remains complete and accurate. All Trust Data shall
be prepared and maintained, by or on behalf of Trust, in accordance with
applicable law, Trust Materials and generally acceptable accounting
principles. The Administrator shall be entitled to rely on all
Trust Data and shall have no liability for any loss, damage or expense
incurred by Trust or any other Person to the extent that such loss, damage
or expense arises out of or is related to Trust Data that is not timely,
current, complete and accurate.
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2.05
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Conversion
Plan. Promptly following the Effective Date, the parties
shall mutually agree upon a written project plan (“Conversion
Plan”) that sets forth the respective roles and responsibilities of
each of the parties in connection with the Conversion of Trust onto the
Administrator’s system.
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SECTION
3
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REPRESENTATIONS,
WARRANTIES AND COVENANTS OF TRUST
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3.01
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Trust
represents and warrants that:
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3.01.01.
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it
has full power, right and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby; the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly approved by all requisite
actions on its part, and no other proceedings on its part are necessary to
approve this Agreement or to consummate the transactions contemplated
hereby; this Agreement has been duly executed and delivered by it; this
Agreement constitutes a legal, valid and binding obligation, enforceable
against it in accordance with its
terms;
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3.01.02.
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it
is not a party to any, and there are no, pending or threatened legal,
administrative, arbitral or other proceedings, claims, actions or
governmental or regulatory investigations or inquiries (collectively,
“Actions”) of
any nature against it or its properties or assets which could,
individually or in the aggregate, have a material effect upon its business
or financial condition. There is no injunction, order,
judgment, decree, or regulatory restriction imposed specifically upon it
or any of its properties or assets;
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3.01.03.
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it
is not in default under any contractual or statutory obligations
whatsoever (including the payment of any tax) which, individually or in
the aggregate, could materially and adversely affect, or is likely to
materially and adversely affect, its business or financial
condition;
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3.01.04.
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it
has obtained all consents and given all notices (regulatory or otherwise),
made all required regulatory filings and is in compliance with all
applicable Laws;
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3.01.05.
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it
has a valid engagement with an independent auditor, transfer agent and
custodian and will provide additional information regarding such service
providers, including information regarding the terms of its agreement with
such service providers, upon
request;
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3.01.06.
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as
of the close of business on the Effective Date, each Portfolio that is in
existence as of the Effective Date has elected to register an indefinite
number of shares in accordance with Rule 24f-2 under the 1940
Act;
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3.01.07.
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if
necessary, any shareholder approval of this Agreement has been
obtained;
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3.01.08.
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it
has notified the Administrator of any and all separate agreements between
Trust and any third party that could have an impact on the Administrator’s
performance of its obligations pursuant to this Agreement;
and
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3.01.09.
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it
is not a party to any agreement regarding any special fee or fee
arrangement.
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3.02
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Trust
covenants and agrees that:
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3.02.01.
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it
will furnish the Administrator from time to time with complete copies,
authenticated or certified, of each of the
following:
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(a)
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Copies
of the following documents:
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(1)
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Copies
of Trust’s current Declaration of Trust and of any amendments thereto,
certified by the proper official of the state in which such document has
been filed;
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(2)
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Trust's
current bylaws and any amendments thereto;
and
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(3)
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Copies
of resolutions of the trustees covering the approval of this Agreement,
authorization of a specified officer of Trust to execute and deliver this
Agreement and authorization for specified officers of Trust to instruct
the Administrator.
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(b)
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A
list of all the officers of Trust, together with specimen signatures of
those officers who are authorized to instruct the Administrator in all
matters.
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(c)
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Copies
of all Trust Materials reasonably requested by the Administrator or
necessary for the Administrator to perform its obligations pursuant to
this Agreement, including the current prospectus and statement of
additional information for each
Portfolio.
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(d)
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A
list of all issuers the Portfolios are restricted from
purchasing.
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(e)
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A
list of all affiliated persons (as such term is defined in the 0000 Xxx)
of Trust that are broker-dealers.
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(f)
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The
identity of Trust’s auditors along with contact
information.
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(g)
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The
expense budget for each Portfolio for the current fiscal
year.
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(h)
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A
list of contact persons (primary, backup and secondary backup) of Trust’s
investment adviser and, if applicable, sub-adviser, who can be reached
until 6:30 p.m. ET with respect to valuation
matters.
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(i)
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Copies
of all Trust Data reasonably requested by the Administrator or necessary
for the Administrator to perform its obligations pursuant to this
Agreement.
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Trust
shall promptly provide the Administrator with written notice of any updates of
or changes to any of the foregoing documents or information, including an
updated written copy of such document or information. Until the
Administrator receives such updated information or document, the Administrator
shall have no obligation to implement or rely upon such updated information or
document.
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3.02.02.
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it
shall timely perform or oversee the performance of all obligations
identified in this Agreement as obligations of Trust, including, without
limitation, providing the Administrator with all Trust Data and Trust
Materials reasonably requested by the Administrator or necessary for the
Administrator to perform its obligations pursuant to this
Agreement;
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3.02.03.
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it
will promptly notify the Administrator of any matter which could
materially affect the Administrator’s performance of its duties and
obligations under this Agreement, including any amendment to the documents
referenced in Section 3.02.01
above;
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3.02.04.
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it
will comply in all material respects with all applicable requirements of
Law;
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3.02.05.
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it
shall be solely responsible for its compliance with applicable investment
policies, Trust Materials, and any Laws governing the manner in which its
assets may be invested, and shall be solely responsible for any losses
attributable to non-compliance with Trust Materials, and applicable
policies and Laws governing such Trust and its activities;
and
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3.02.06.
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it
will promptly notify the Administrator of updates to its representations
and warranties hereunder.
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SECTION
4
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REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE
ADMINISTRATOR
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4.01
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The
Administrator represents and warrants
that:
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4.01.01.
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it
has full power, right and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby; the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly approved by all requisite
action on its part, and no other proceedings on its part are necessary to
approve this Agreement or to consummate the transactions contemplated
hereby; this Agreement has been duly executed and delivered by it; this
Agreement constitutes a legal, valid and binding obligation, enforceable
against it in accordance with its
terms.
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4.01.02.
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it
is not a party to any, and there are no, pending or threatened Actions of
any nature against it or its properties or assets which could,
individually or in the aggregate, have a material effect upon its business
or financial condition. There is no injunction, order,
judgment, decree, or regulatory restriction imposed specifically upon it
or any of its properties or assets.
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4.01.03.
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it
is not in default under any contractual or statutory obligations
whatsoever (including the payment of any tax) which individually or in the
aggregate materially and adversely affects, or is likely to materially and
adversely affect, its business or financial
condition.
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SECTION
5
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LIMITATION
OF LIABILITY AND INDEMNIFICATION
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5.01
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THE
DUTIES OF THE ADMINISTRATOR SHALL BE CONFINED TO THOSE EXPRESSLY SET FORTH
IN THIS AGREEMENT, AND NO IMPLIED DUTIES ARE ASSUMED BY OR MAY BE ASSERTED
AGAINST THE ADMINISTRATOR. NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT TO THE CONTRARY, NO LIABILITY OF ANY KIND WILL BE
ATTACHED TO OR INCURRED BY THE ADMINISTRATOR EXCEPT TO THE EXTENT ARISING
OUT OF THE ADMINISTRATOR’S GROSS NEGLIGENCE, BAD FAITH, FRAUD AND RECKLESS
DISREGARD IN THE PERFORMANCE OF THE SERVICES. For the avoidance
of doubt, the Administrator shall not be responsible for any breach in the
performance of its obligations under this Agreement due to (i) the failure
or delay of any Portfolio, underlying fund or either of their respective
agents to perform its obligations under this Agreement or (ii) the
Administrator’s reliance on Trust Data. Each party shall have
the duty to mitigate its damages for which another party may become
responsible. As used in this Section 5, the term
“Administrator” shall include the officers, directors, employees,
affiliates and agents of the Administrator as well as that entity
itself. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT
TO THE CONTRARY, IN NO EVENT SHALL THE ADMINISTRATOR BE LIABLE FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR OTHER
NON-DIRECT DAMAGES OF ANY KIND WHETHER SUCH LIABILITY IS PREDICATED ON
CONTRACT, STRICT LIABILITY, OR ANY OTHER THEORY AND REGARDLESS OF WHETHER
TRUST IS ADVISED OF THE POSSIBILITY OF ANY SUCH
DAMAGES.
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5.02
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The
Administrator may, from time to time, provide to Trust services and
products (“Special Third Party
Services”) from external third party sources that are
telecommunication carriers, Pricing Sources, data feed providers or other
similar service providers (“Special Third Party
Vendors”). Trust acknowledges and agrees that the
Special Third Party Services are confidential and proprietary trade
secrets of the Special Third Party Vendors. Accordingly, Trust
shall honor requests by the Administrator and the Special Third Party
Vendors to protect their proprietary rights in their data, information and
property including written requests that Trust place copyright notices or
other proprietary legends on printed matter, print outs, tapes, disks,
film or any other medium of dissemination. Trust further
acknowledges and agrees that all Special Third Party Services are provided
on an “AS IS WITH ALL FAULTS” basis solely for such Trust’s internal use
in connection with the receipt of the Services. Trust may use
Special Third Party Services as normally required on view-only screens and
hard copy statements, reports and other documents necessary to support
such Trust’s investors, however Trust shall not distribute any Special
Third Party Services to other third parties. THE SPECIAL THIRD
PARTY VENDORS AND THE ADMINISTRATOR MAKE NO WARRANTIES, EXPRESS OR
IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR ANY OTHER
MATTER WITH RESPECT TO ANY OF THE SPECIAL THIRD PARTY
SERVICES. NEITHER THE ADMINISTRATOR NOR THE SPECIAL THIRD PARTY
VENDORS SHALL BE LIABLE FOR ANY DAMAGES SUFFERED BY TRUST IN THE USE OF
ANY OF THE SPECIAL THIRD PARTY SERVICES, INCLUDING, WITHOUT LIMITATION,
LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL OR SIMILAR
DAMAGES.
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5.03
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Trust
shall indemnify and hold harmless the Administrator from and against and,
subject to the standard of care set forth in Section 5.01 of
this Agreement, the Administrator shall have no liability in connection
with any and all actions, suits and claims, whether groundless or
otherwise, and from and against any and all losses, damages, costs,
charges, reasonable counsel fees and disbursements, payments, expenses and
liabilities (including reasonable investigation expenses) arising directly
or indirectly out of: (i) any act or omission of the Administrator in
carrying out its duties hereunder or as a result of the Administrator’s
reliance upon any instructions, notice or instrument that the
Administrator believes is genuine and signed or presented by an authorized
Person of Trust; (ii) any violation by Trust of any applicable investment
policy or Law, (iii) any misstatement or omission in Trust Materials or
any Trust Data except to the extent such misstatement or omission was
based on information provided by the Administrator to Trust; (iv) any
breach by Trust of any representation, warranty or agreement contained in
this Agreement; (v) any act or omission of Trust, Trust’s former
administrator, a Special Third Party Vendor, Trust’s other service
providers (such as custodians, transfer agents, investment advisers and
sub-advisers); (vi) any pricing error caused by the failure of Trust’s
investment adviser or sub-adviser to provide a trade ticket or for
incorrect information included in any trade ticket; or (vii) any act or
omission of the Administrator as a result of the Administrator’s
compliance with its obligations pursuant to the AML
Laws.
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5.04
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The
Administrator shall indemnify and hold harmless Trust from and against and
Trust shall have no liability in connection with any and all actions,
suits and claims, whether groundless or otherwise, and from and against
any and all losses, damages, costs, charges, reasonable counsel fees and
disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) arising directly or indirectly out of any breach
by the Administrator of any representation, warranty, covenant or any
material breach of any other term contained in this
Agreement.
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5.05
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The
Administrator may apply to Trust or any Person acting on Trust’s behalf at
any time for instructions and may consult counsel for Trust or with
accountants, counsel and other experts with respect to any matter arising
in connection with the Administrator’s duties hereunder, and the
Administrator shall not be liable or accountable for any action taken or
omitted by it in good faith in accordance with such instruction or with
the advice of counsel, accountants or other experts. Also, the
Administrator shall not be liable for actions taken pursuant to any
document which it reasonably believes to be genuine and to have been
signed by the proper Person or Persons. The Administrator shall
not be held to have notice of any change of authority of any officer,
employee or agent of Trust until receipt of written notice
thereof. To the extent that the Administrator consults with
Trust counsel pursuant to this provision, any such expense shall be borne
by Trust.
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5.06
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The
Administrator may rely on and shall have no duty to investigate or confirm
the accuracy or adequacy of any information provided by unaffiliated third
parties such as, by way of example and not limitation, transfer agents,
sub-transfer agents, custodians, placement agents, third party marketers,
asset data service providers, investment advisers or sub-advisers, current
or former third party service providers, Pricing Sources, software
providers, printers, postal or delivery services, prior administrators,
telecommunications providers and processing and settlement
services.
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5.07
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The
Administrator shall have no obligations with respect to any laws relating
to the distribution, purchase or sale of Shares. Further, Trust
assumes full responsibility for the preparation, contents and distribution
of its Trust Materials and its compliance with any applicable
Laws. For the avoidance of doubt, in no event shall the
Administrator be responsible for selling activity to assist in the sales
or asset gathering efforts of
Trust.
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5.08
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The
indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation or Action with respect to which indemnification hereunder may
ultimately be merited. If in any case a party is asked to
indemnify or hold the other party harmless, the party seeking
indemnification shall promptly advise the indemnifying party of the
pertinent facts concerning the situation in question, and the party
seeking indemnification will use all reasonable care to identify and
notify the indemnifying party promptly concerning any situation which
presents or appears likely to present the probability of such a claim for
indemnification, but failure to do so shall not affect the rights
hereunder.
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5.09
|
Trust
shall be entitled to participate at its own expense or, if it so elects,
to assume the defense of any suit brought to enforce any claims subject to
this indemnity provision. If Trust elects to assume the defense
of any such claim, the defense shall be conducted by counsel chosen by
Trust and satisfactory to the Administrator, whose approval shall not be
unreasonably withheld. In the event that Trust elects to assume
the defense of any suit and retain counsel, the Administrator shall bear
the fees and expenses of any additional counsel retained by
it. If Trust does not elect to assume the defense of a suit, it
will reimburse the Administrator for the fees and expenses of any counsel
retained by the Administrator. None of the parties hereto shall
settle or compromise any action, suit, proceeding or claim if such
settlement or compromise provides for an admission of liability on the
part of the indemnified party without such indemnified party's written
consent.
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5.10
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The
provisions of this Section 5 shall
survive the termination of this
Agreement.
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SECTION
6
|
VALUATION
|
The
Administrator is entitled to rely on the price and value information
(hereinafter “Valuation
Information”) provided by prior administrators, brokers and custodians,
investment advisers, an underlying fund in which Trust invests, if applicable,
or any third-party pricing services selected by the Administrator, Trust’s
investment adviser or Trust (collectively hereinafter referred to as the “Pricing Sources”) in
order to calculate each Portfolio’s aggregate NAV (and the value of
shareholders’ accounts based upon such valuation). The Administrator
shall have no obligation to obtain Valuation Information from any sources other
than the Pricing Sources and may rely on estimates provided by Trust’s
investment adviser or the applicable underlying fund pursuant to the Trust
Materials. The Administrator shall have no liability or
responsibility for the accuracy of the Valuation Information provided by a
Pricing Source or the delegate of a Pricing Source and Trust shall indemnify and
defend the Administrator against any loss, damages, costs, charges or reasonable
counsel fees and expenses in connection with any inaccuracy of such Valuation
Information. Trust shall not use Valuation Information for any
purpose other than in connection with the Services and in accordance with the
provisions of this Agreement.
|
SECTION
7
|
ALLOCATION
OF CHARGES AND EXPENSES
|
|
7.01
|
The
Administrator. The Administrator shall furnish at its
own expense the personnel necessary to perform its obligations under this
Agreement.
|
|
7.02
|
Portfolio
Expenses. Trust assumes and shall pay or cause to be
paid all expenses of Trust not otherwise allocated in this Agreement,
including, without limitation, organizational costs; taxes; expenses for
legal and auditing services; the expenses of preparing (including
typesetting), printing and mailing reports, Trust Materials, proxy
solicitation and tender offer materials and notices to existing
shareholders; all expenses incurred in connection with issuing and
redeeming Shares; the costs of Pricing Sources; the costs of escrow and
custodial services; the cost of initial and ongoing registration of the
Shares under Federal and state securities laws; costs associated with
attempting to locate lost shareholders; all expenses incurred in
connection with any custom programming or systems modifications required
to provide any reports or services requested by Trust; any expense, if
applicable, incurred to reprint Trust documents identifying the
Administrator (along with its address and telephone number) as Trust’s new
administrator; bank service charges; NSCC trading charges; fees and
out-of-pocket expenses of trustees; the costs of trustees’ meetings;
insurance; interest; brokerage costs; litigation and other extraordinary
or nonrecurring expenses; and all fees and charges of service providers to
Trust. Trust shall reimburse the Administrator for its
reasonable out-of-pocket expenses for SAS 70 audit charges; Lipper data;
and courier services, copying, postage, fulfillment or printing charges
specifically incurred on behalf of Trust by the Administrator in the
performance of its duties, if applicable. For the avoidance of
doubt, out of pocket expenses shall not include costs associated with
allocation of internal legal resources of the
Administrator.
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THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
|
SECTION
8
|
COMPENSATION
|
|
8.01
|
Trust
shall pay to the Administrator compensation for the services performed and
the facilities and personnel provided by the Administrator pursuant to
this Agreement, its pro-rata portion of the fees set forth in the written
fee schedule annexed hereto as Schedule
III and incorporated
herein. Trust shall have no right of set-off. The
fees set forth herein are determined based on the investment strategy of
each Portfolio as of the Effective Date. Any material change to
the investment strategy of a Portfolio may give rise to an adjustment to
the fees set forth in this Agreement. In the event of a
material change in the investment strategy of a Portfolio, the parties
shall negotiate any adjustment to the fees payable hereunder in good
faith. Trust shall pay the Administrator’s fees monthly in U.S.
Dollars, unless otherwise agreed to by the parties. The
Administrator is hereby authorized to, and may, at its option,
automatically debit its fees due from a Portfolio account(s), as set forth
on Schedule
III, which may be amended from time to time in writing by the
parties; provided, however that the Administrator shall issue an invoice
in connection with any such fees. Trust shall pay the foregoing
fees despite the existence of any dispute among the parties; provided,
however that Trust need not pay any portion of the fees that are the
subject of a good faith dispute. If this Agreement becomes
effective subsequent to the first day of any calendar month or terminates
before the last day of any calendar month, the Administrator’s
compensation for that part of the month in which this Agreement is in
effect shall be prorated in a manner consistent with the calculation of
the fees as set forth in Schedule
III.
|
|
8.02
|
In
the event any and all accrued fees not subject to a good faith dispute,
reimbursable expenses and other moneys owed to the Administrator hereunder
remain unpaid in whole or in part for more than thirty days past due, the
Administrator, without further notice, may take any and all actions it
deems necessary to collect such amounts due, and any and all of its
collection expenses, costs and fees shall be paid by Trust, including,
without limitation, administrative costs, attorneys fees, court costs,
collection agencies or agents and
interest.
|
|
8.03
|
Trust
acknowledges that the Administrator may receive float benefits and/or
investment earnings in connection with maintaining certain accounts
required to provide services under this
Agreement.
|
|
SECTION
9
|
DURATION
AND TERMINATION
|
|
9.01
|
Term and
Renewal. This Agreement shall become effective as of the
Effective Date and shall remain in effect for a period of four years from
and after the Live Date (the “Initial Term”),
and thereafter shall automatically renew for successive one year terms
(each such period, a “Renewal Term”)
unless terminated by any party giving written notice of non-renewal at
least ninety days prior to the last day of the then current term to each
other party hereto. On or before the beginning of a Renewal
Term, the parties shall negotiate in good faith in connection with
entering into a Renewal Term of greater than one
year.
|
|
9.02
|
Termination for
Cause.
|
|
9.02.01.
|
This
Agreement may be terminated by any party if at any time the other party or
parties have been first (i) notified in writing that such party shall have
materially failed to perform its duties and obligations under this
Agreement (such notice shall be of the specific asserted material breach)
(“Breach
Notice”) and (ii) the party receiving the Breach Notice shall not
have remedied the noticed failure within sixty days after receipt of the
Breach Notice requiring it to be
remedied.
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SERVICES
|
9.02.02.
|
This
Agreement may be terminated by any party giving seventy-five days’ prior
notice in writing to the other parties prior to the “liquidation” of
Trust. For purposes of this paragraph, the term “liquidation”
shall mean a transaction in which all the assets of Trust are sold or
otherwise disposed of and proceeds there from are distributed in cash to
the shareholders in complete liquidation of the interests of shareholders
in Trust. A termination pursuant to this Section 9.02.02
shall be effective as of the date of such liquidation. Notwithstanding the
foregoing, the right to terminate set forth in this Section 9.02.02
shall not relieve Trust of its obligation to pay the fees set forth on
Schedule
III for the remainder of the seventy-five day period set forth in
this Section
9.02.02, which amount shall be payable prior to the effective date
of such liquidation.
|
|
9.02.03.
|
If
the Administrator is unable to successfully convert a Portfolio to its
operational environment within a reasonable period of time following the
Effective Date (or, with respect to any Portfolio added via amendment to
this Agreement after the Effective Date, within a reasonable period of
time following the date of such amendment) due to untimely, inaccurate or
incomplete Trust Data, the Administrator shall have the right to terminate
this Agreement, in its entirety or solely with respect to such Portfolio,
upon written notice and such termination shall be effective upon the date
set forth in such notice.
|
|
9.03
|
Effect of
Termination.
|
|
9.03.01.
|
The
termination of this Agreement shall be without prejudice to any rights
that may have accrued hereunder to any party hereto prior to such
termination.
|
|
9.03.02.
|
After
termination of this Agreement and upon payment of all accrued fees not
subject to a good faith dispute, reimbursable expenses and other moneys
owed to the Administrator, the Administrator shall deliver to Trust, or as
it shall direct, all books of account, records, registers, correspondence,
documents and assets relating to the affairs of or belonging to Trust in
the possession of or under the control of the Administrator or any of its
agents or delegates.
|
|
9.03.03.
|
Notwithstanding
the foregoing, in the event this Agreement is terminated and for any
reason the Administrator, with the written consent of Trust, in fact
continues to perform any one or more of the services contemplated by this
Agreement, the pertinent provisions
of this Agreement, including without limitation, the provisions dealing
with payment of fees and indemnification shall continue in full force and
effect. The Administrator shall be entitled to collect from
Trust, in addition to the compensation described in Schedule III,
the amount of all of the Administrator’s expenses in connection with the
Administrator’s activities following such termination, including without
limitation, the delivery to Trust and/or its designees of Trust's
property, records, instruments and
documents.
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| Rev. 6.2.2008 |
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SERVICES
|
SECTION
10
|
CONFLICTS
OF INTEREST
|
|
10.01
|
Non-Exclusive. The
services of the Administrator rendered to Trust are not deemed to be
exclusive. The Administrator is free to render such services to
others. The Administrator shall not be deemed to be affected by
notice of, or to be under any duty to disclose to Trust or Person acting
on Trust’s behalf, information which has come into its possession or the
possession of an Interested Party in the course of or in connection with
providing administrative or other services to any other person or in any
manner whatsoever other than in the course of carrying out its duties
pursuant to this Agreement.
|
|
10.02
|
Rights of Interested
Parties. Subject to applicable law, nothing herein
contained shall prevent:
|
|
10.02.01.
|
an
Interested Party from buying, holding, disposing of or otherwise dealing
in any Shares for its own account or the account of any of its customers
or from receiving remuneration in connection therewith, with the same
rights which it would have had if the Administrator were not a party to
this Agreement;
|
|
10.02.02.
|
an
Interested Party from buying, holding, disposing of or otherwise dealing
in any securities or other investments for its own account or for the
account of any of its customers and receiving remuneration in connection
therewith, notwithstanding that the same or similar securities or other
investments may be held by or for the account of Trust;
and
|
|
10.02.03.
|
an
Interested Party from contracting or entering into any financial, banking
or other transaction with Trust or from being interested in any such
contract or transaction; provided, however, that such transaction complies
with Section 17 of the 1940 Act and the rules promulgated thereunder,
including without limitation, any director approval or disclosure
requirements.
|
|
SECTION
11
|
CONFIDENTIALITY
|
|
11.01
|
Confidential
Information. The Administrator and Trust (in such
capacity, the “Receiving
Party”) acknowledge and agree to maintain the confidentiality of
Confidential Information (as hereinafter defined) provided by the
Administrator and Trust (in such capacity, the “Disclosing
Party”) in connection with this Agreement. The Receiving
Party shall not disclose or disseminate the Disclosing Party’s
Confidential Information to any Person other than those employees, agents,
contractors, subcontractors and licensees of the Receiving Party, or with
respect to the Administrator as a Receiving Party, to those employees,
agents, contractors, subcontractors and licensees of any agent or
affiliate, who have a need to know it in order to assist the Receiving
Party in performing its obligations, or to permit the Receiving Party to
exercise its rights under this Agreement. In addition, the
Receiving Party (a) shall take all reasonable steps to prevent
unauthorized access to the Disclosing Party’s Confidential Information,
and (b) shall not use the Disclosing Party’s Confidential Information, or
authorize other Persons to use the Disclosing Party’s Confidential
Information, for any purposes other than in connection with performing its
obligations or exercising its rights hereunder. As used herein,
“reasonable steps” means steps that a party takes to protect its own,
similarly confidential or proprietary information of a similar nature,
which steps shall in no event be less than a reasonable standard of
care.
The term “Confidential
Information,” as used herein, shall mean all business strategies,
plans and procedures, proprietary information, methodologies, data and
trade secrets, Portfolio holdings and other confidential information and
materials (including, without limitation, any non-public personal
information as defined in Regulation S-P) of the Disclosing Party, its
affiliates, their respective clients or suppliers, or other Persons with
whom they do business, that may be obtained by the Receiving Party from
any source or that may be developed as a result of this
Agreement.
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THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
|
11.02
|
Exclusions. The
provisions of this Section 11
respecting Confidential Information shall not apply to the extent, but
only to the extent, that such Confidential Information: (a) is already
known to the Receiving Party free of any restriction at the time it is
obtained from the Disclosing Party, (b) is subsequently learned from an
independent third party free of any restriction and without breach of this
Agreement; (c) is or becomes publicly available through no wrongful act of
the Receiving Party or any third party; (d) is independently developed by
or for the Receiving Party without reference to or use of any Confidential
Information of the Disclosing Party; or (e) is required to be disclosed
pursuant to an applicable Law (provided, however, that the Receiving Party
shall advise the Disclosing Party of such required disclosure promptly
upon learning thereof in order to afford the Disclosing Party a reasonable
opportunity to contest, limit and/or assist the Receiving Party in
crafting such disclosure).
|
|
11.03
|
Permitted
Disclosure. The Receiving Party shall advise its
employees, agents, contractors, subcontractors and licensees, and shall
require its affiliates to advise their employees, agents, contractors,
subcontractors and licensees, of the Receiving Party’s obligations of
confidentiality and non-use under this Section 11, and
shall be responsible for ensuring compliance by its and its affiliates’
employees, agents, contractors, subcontractors and licensees with such
obligations. In addition, the Receiving Party shall require all
Persons that are provided access to the Disclosing Party’s Confidential
Information, other than the Receiving Party’s accountants and legal
counsel, to execute confidentiality or non-disclosure agreements
containing provisions substantially similar to those set forth in this
Section
11. The Receiving Party shall promptly notify the
Disclosing Party in writing upon learning of any unauthorized disclosure
or use of the Disclosing Party’s Confidential Information by such
Persons.
|
|
11.04
|
Effect of
Termination. Upon the Disclosing Party’s written request
following the termination of this Agreement, the Receiving Party promptly
shall return to the Disclosing Party, or destroy, all Confidential
Information of the Disclosing Party provided under or in connection with
this Agreement, including all copies, portions and summaries
thereof. Notwithstanding the foregoing sentence, (a) the
Receiving Party may retain one copy of each item of the Disclosing Party’s
Confidential Information for purposes of identifying and establishing its
rights and obligations under this Agreement, for archival or audit
purposes and/or to the extent required by applicable law, and (b) the
Administrator shall have no obligation to return or destroy Confidential
Information of Trust that resides in save tapes of Administrator;
provided, however, that in either case all such Confidential Information
retained by the Receiving Party shall remain subject to the provisions of
Article
11 for so long as it is so retained. If requested by the
Disclosing Party, the Receiving Party shall certify in writing its
compliance with the provisions of this
paragraph.
|
|
SECTION
12
|
MISCELLANEOUS
PROVISIONS
|
|
12.01
|
Internet
Access. Data and information may be made electronically
accessible to Trust, its adviser and/or sub-adviser(s) and its investors
through Internet access to one or more web sites provided by the
Administrator (“Web
Access”). As between Trust and Administrator, the
Administrator shall own all right, title and interest to such Web Access,
including, without limitation, all content, software, interfaces,
documentation, data, trade secrets, design concepts, “look and feel”
attributes, enhancements, improvements, ideas and inventions and all
intellectual property rights inherent in any of the foregoing or
appurtenant thereto including all patent rights, copyrights, trademarks,
know-how and trade secrets (collectively, the “Proprietary
Information”). Trust recognizes that the Proprietary
Information is of substantial value to the Administrator and shall not use
or disclose the Proprietary Information except as specifically authorized
in writing by the Administrator. Use of the Web Access by Trust
or its agents or investors will be subject to any additional terms of use
set forth on the web site. All Web Access and the information
(including text, graphics and functionality) on the web sites related to
such Web Access is presented “As Is” and “As Available” without express or
implied warranties including, but not limited to, implied warranties of
non-infringement, merchantability and fitness for a particular
purpose. The Administrator neither warrants that the Web Access
will be uninterrupted or error free, nor guarantees the accessibility,
reliability, performance, timeliness, sequence, or completeness of
information provided on the Web
Access.
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THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
|
12.02
|
Independent
Contractor. In making, and performing under, this
Agreement, the Administrator shall be deemed to be acting as an
independent contractor of Trust and neither the Administrator nor its
employees shall be deemed an agent, affiliate, legal representative, joint
venturer or partner of Trust. No party is authorized to bind
any other party to any obligation, affirmation or commitment with respect
to any other Person.
|
|
12.03
|
Assignment; Binding
Effect. Trust may not assign, delegate or transfer, by
operation of law or otherwise, this Agreement (in whole or in part), or
any of Trust’s obligations hereunder, without the prior written consent of
the Administrator, which consent shall not be unreasonably withheld or
delayed. The Administrator may assign, delegate or transfer, by
operation of law or otherwise, all or any portion of its rights under this
Agreement to an affiliate of the Administrator or to any person or entity
who purchases all or substantially all of the business or assets of the
Administrator to which this Agreement relates, provided that such
affiliate, person or entity agrees in advance and in writing to be bound
by the terms, conditions and provisions of this
Agreement. Subject to the foregoing, all of the terms,
conditions and provisions of this Agreement shall be binding upon and
shall inure to the benefit of each party’s successors and permitted
assigns. Any assignment, delegation, or transfer in violation
of this provision shall be void and without legal
effect.
|
|
12.04
|
Agreement for Sole
Benefit of the Administrator and Trust. This Agreement
is for the sole and exclusive benefit of the Administrator and Trust and
will not be deemed to be for the direct or indirect benefit of the clients
or customers of the Administrator or Trust. The clients or
customers of the Administrator or Trust will not be deemed to be third
party beneficiaries of this Agreement nor to have any other contractual
relationship with the Administrator by reason of this Agreement and each
party hereto agrees to indemnify and hold harmless the other party from
any claims of its clients or customers against the other party including
any attendant expenses and attorneys’ fees, based on this Agreement or the
services provided hereunder.
|
|
12.05
|
Governing
Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without giving effect
to any conflict of laws or choice of laws rules or principles
thereof. To the extent that the applicable laws of the State of
Delaware, or any of the provisions of this Agreement, conflict with the
applicable provisions of the 1940 Act, the Securities Act of 1933 or the
Securities Exchange Act of 1934, the latter shall
control.
|
|
12.06
|
Equitable
Relief. Each party agrees that any other party’s
violation of the provisions of Section 11
(Confidentiality) may cause immediate and irreparable harm to the
other party for which money damages may not constitute an adequate remedy
at law. Therefore, the parties agree that, in the event either
party breaches or threatens to breach said provision or covenant, the
other party shall have the right to seek, in any court of competent
jurisdiction, an injunction to restrain said breach or threatened breach,
without posting any bond or other
security.
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THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
|
12.07
|
Dispute
Resolution. Whenever either party desires to institute
legal proceedings against the other concerning this Agreement, it shall
provide written notice to that effect to such other party. The
party providing such notice shall refrain from instituting said legal
proceedings for a period of thirty days following the date of provision of
such notice. During such period, the parties shall attempt in
good faith to amicably resolve their dispute by negotiation among their
executive officers and legal counsel. This Section 12.07
shall not prohibit either party from seeking, at any time, equitable
relief as permitted under Section
12.06.
|
|
12.08
|
Notice. All
notices provided for or permitted under this Agreement (except for
correspondence between the parties related to operations in the ordinary
course) shall be deemed effective upon receipt, and shall be in writing
and (a) delivered personally, (b) sent by commercial overnight courier
with written verification of receipt, or (c) sent by certified or
registered U.S. mail, postage prepaid and return receipt requested, to the
party to be notified, at the address for such party set forth below, or at
such other address of such party specified in the opening paragraph of
this Agreement. Notices to the Administrator shall be sent to
the attention of: General Counsel, SEI Investments Global Funds Services,
Xxx Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000, with a copy, given in
the manner prescribed above, to your current relationship
manager. Notices to Trust shall be sent to the persons
specified in Schedule
IV.
|
|
12.09
|
Entire Agreement;
Amendments. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter
hereof. This Agreement supersedes all prior or contemporaneous
representations, discussions, negotiations, letters, proposals, agreements
and understandings between the parties hereto with respect to the subject
matter hereof, whether written or oral. This Agreement may be
amended, modified or supplemented only by a written instrument duly
executed by an authorized representative of each of the
parties.
|
|
12.10
|
Severability. Any
provision of this Agreement that is determined to be invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of
such invalidity or unenforceability in such jurisdiction, without
rendering invalid or unenforceable the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction. If a court of competent jurisdiction
declares any provision of this Agreement to be invalid or unenforceable,
the parties agree that the court making such determination shall have the
power to reduce the scope, duration, or area of the provision, to delete
specific words or phrases, or to replace the provision with a provision
that is valid and enforceable and that comes closest to expressing the
original intention of the parties, and this Agreement shall be enforceable
as so modified.
|
|
12.11
|
Waiver. Any
term or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof by written instrument executed by such
party. No failure of either party hereto to exercise any power
or right granted hereunder, or to insist upon strict compliance with any
obligation hereunder, and no custom or practice of the parties with regard
to the terms of performance hereof, will constitute a waiver of the rights
of such party to demand full and exact compliance with the terms of this
Agreement.
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THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
|
12.12
|
Anti-Money Laundering
Laws. Trust acknowledges that the Administrator
prohibits investment in a Portfolio by or on behalf of persons who are
required to be excluded from such investments pursuant to any program
administered by the U.S. Department of the Treasury’s Office of Foreign
Assets Control. Trust further acknowledges and agrees that each
Portfolio shall provide any information reasonably requested by the
Administrator in connection with the Administrator’s voluntary compliance
with applicable Laws aimed at the prevention and detection of money
laundering and/or issued by the U.S. Office of Foreign Assets Control
(hereinafter, “AML
Laws”).
|
|
12.13
|
Force
Majeure. No breach of any obligation of a party to this
Agreement (other than obligations to pay amounts owed) will constitute an
event of default or breach to the extent it arises out of a cause,
existing or future, that is beyond the control and without negligence of
the party otherwise chargeable with breach or default, including without
limitation: work action or strike; lockout or other labor
dispute; flood; war; riot; theft; act of terrorism, earthquake or natural
disaster. Either party desiring to rely upon any of the
foregoing as an excuse for default or breach will, when the cause arises,
give to the other party prompt notice of the facts which constitute such
cause; and, when the cause ceases to exist, give prompt notice thereof to
the other party.
|
|
12.14
|
Equipment
Failures. In the event of equipment failures beyond the
Administrator’s control, the Administrator shall take reasonable and
prompt steps to minimize service interruptions but shall have no liability
with respect thereto. The Administrator shall develop and
maintain a plan for recovery from equipment failures which may include
contractual arrangements with appropriate parties making reasonable
provision for emergency use of electronic data processing equipment to the
extent appropriate equipment is
available.
|
|
12.15
|
Non-Solicitation. During
the term of this Agreement and for a period of one year thereafter,
neither Trust nor the Administrator’s Investment Manager Services market
unit shall solicit, make an offer of employment to, or enter into a
consulting relationship with, any person who was, with respect to Trust,
an employee of the Administrator’s Investment Manager Services market
unit, and, with respect to the Administrator’s Investment Manager Services
market unit, any person who was an employee of Trust during the term of
this Agreement. If any party breaches this provision, such
party shall pay to the other party liquidated damages equal to 100% of the
most recent twelve month salary of the former employee together with all
legal fees reasonably incurred by the non-breaching party in enforcing
this provision. The foregoing restriction on solicitation does not apply
to unsolicited applications for jobs, responses to public advertisements
or candidates submitted by recruiting firms, provided that such firms have
not been contacted to circumvent the spirit and intention of this Section
12.15.
|
|
12.16
|
Headings. All
Article headings contained in this Agreement are for convenience of
reference only, do not form a part of this Agreement and will not affect
in any way the meaning or interpretation of this
Agreement.
|
|
12.17
|
Counterparts. This
Agreement may be executed in one or more counterparts, all of which shall
constitute one and the same instrument. Each such counterpart
shall be deemed an original, and it shall not be necessary in making proof
of this Agreement to produce or account for more than one such
counterpart. This Agreement shall be deemed executed by both
parties when any one or more counterparts hereof or thereof, individually
or taken together, bears the original facsimile or scanned signatures of
each of the parties.
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THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
|
12.18
|
Publicity. Except
to the extent required by applicable law, neither the Administrator nor
Trust shall issue or initiate any press release arising out of or in
connection with this Agreement or the Services rendered hereunder; provided, however, that if no
special prominence is given or particular reference made to Trust over
other clients, nothing herein shall prevent the Administrator from (i)
placing Trust on the Administrator’s client list(s) (and sharing such
list(s) with current or potential clients of the Administrator); (ii)
using Trust as reference, subject to consent of Trust; or (iii) otherwise
orally disclosing that Trust is a client of the Administrator at
presentations, conferences or other similar meetings. If the
Administrator desires to engage in any type of publicity other than as set
forth in subsections (i) through (iii) above or if Trust desires to engage
in any type of publicity, the party desiring to engage in such publicity
shall obtain the prior written consent of the other party hereto, such
consent not to be unreasonably withheld, delayed or
conditioned.
|
|
12.19
|
Key
Personnel. With respect to the Administrator’s personnel
set forth in Schedule V (Key Personnel) (the “Key
Personnel”), the parties agree as
follows:
|
|
12.19.01.
|
The
Administrator’s client relationship and fund accounting team assigned to
the performance of this Agreement will be managed by the Key
Personnel. Before replacing or reassigning Key Personnel, the
Administrator will: (1) notify Trust of the proposed replacement or
reassignment, (2) provide Trust with any information regarding the reasons
of such proposed replacement or reassignment as may be reasonably
requested by Trust, and (3) consider in good faith input or
recommendations from Trust regarding such proposed replacement or
reassignment.
|
|
12.19.02.
|
Upon
reasonable grounds, Trust may by written notice to the Administrator,
require the Administrator to replace any Key Personnel or replacements of
Key Personnel for the reasons stated in the notice and after receipt of
such notice, the Administrator will have five business days in which to
investigate the matters stated in the notice, discuss its findings with
Trust and resolve any problems with the Key Personnel or replacement. If,
following that period Trust, in good faith, continues to require
replacement of the Key Personnel or replacement, the Administrator will
replace that person, as soon as practicable, with another person of
suitable ability and qualifications. Trust does not have the
right to require termination of any person’s employment or contract with
the Administrator.
|
|
12.19.03.
|
The
Administrator shall select Key Personnel and replacements therefore to
provide services on behalf of Trust in its sole discretion; provided,
however, that such individuals shall possess suitable ability and
qualifications to serve in such capacity. The parties agree
that neither the continued performance of services by Key Personnel nor
the replacement of Key Personnel shall effect the Administrator’s
obligations to provide the Services in the manner set forth
herein.
|
|
12.19.04.
|
The
Administrator will use commercially reasonable efforts to conduct the
replacement procedures for the Key Personnel in such a manner so as to
seek to assure an orderly succession for Key Personnel who are
replaced.
|
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remainder of this page has intentionally been left blank.]
| Rev. 6.2.2008 |
Page 17 of
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|
Mutual
Fund Administration Agreement
SEI –
83776v7
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the Effective Date.
|
ADMINISTRATOR:
|
TRUST:
|
|
SEI
INVESTMENTS GLOBAL FUNDS SERVICES
By:
/s/ Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Executive
Vice President
|
By:
/s/ Xxxxxxxx X.
Xxxxxxx
Name:
Xxxxxxxx X. Xxxxxxx
Title:
President
|
| Rev. 6.2.2008 |
Page 18 of
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|
Mutual
Fund Administration Agreement
SEI –
83776v7
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
SCHEDULE
I
Portfolios
Equity
Fund
Balanced
Fund
Income
Fund
Short-Term
Investment Fund
Small Cap
Growth Fund
International
Equity Fund
Socially
Responsible Fund
2010
Aggressive Fund
2010
Moderate Fund
2010
Conservative Fund
2015
Moderate Fund
2025
Moderate Fund
2035
Moderate Fund
2045
Moderate Fund
Wilshire
Balanced Income ETF Portfolio
Wilshire
Balanced ETF Portfolio
Wilshire
Balanced Growth ETF Portfolio
| Rev. 6.2.2008 |
Page 1 of
1
|
Mutual
Fund Administration Agreement
SEI –
83784v7
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
SCHEDULE
II
List of
Services
On-Going
Services
|
1)
|
Maintain
Trust’s accounting books and records, material contracts, policies and
procedures and resolutions that are prepared by or provided to the
Administrator during the term of this
Agreement;
|
|
2)
|
Obtain
Portfolio security valuations from appropriate independent Pricing Sources
consistent with Trust’s pricing and valuation policies, and calculate net
asset value of each Portfolio and
class;
|
|
3)
|
Monitor
indices and halted securities and communicate issues that are reasonably
expected to trigger a security fair valuation in accordance with Trust’s
pricing and valuation policies;
|
|
4)
|
Compute
yields, total return, expense ratios, portfolio turnover rate and average
dollar-weighted portfolio maturity, as
appropriate;
|
|
5)
|
Track
and validate income and expense accruals, analyze and modify expense
accrual changes periodically, and process expense disbursements to vendors
and service providers;
|
|
6)
|
Perform
cash processing such as recording paid-in capital activity, perform
necessary reconciliations with the transfer agent and the custodian, and
provide cash availability data to the adviser, if
requested;
|
|
7)
|
Calculate
required ordinary income and capital gains distributions, coordinate
estimated cash payments, and perform necessary reconciliations with the
transfer agent;
|
|
8)
|
Provide
standardized performance reporting data to Trust and its
adviser;
|
|
9)
|
Provide
performance, financial and expense information for registration statements
and proxies;
|
|
10)
|
Communicate
net asset value, yield, total return or other financial data to
appropriate third party reporting agencies, and assist in resolution of
errors reported by such third party
agencies;
|
|
11)
|
Update
accounting system to reflect rate changes, as received from a Portfolio's
investment adviser, sub-adviser or respective designee, on variable
interest rate instruments;
|
|
12)
|
Allocate
daily capital stock activity to a Portfolio’s sub-advisors based on
allocation instructions provided by the
Advisor;
|
|
13)
|
Accrue
expenses of each Portfolio according to instructions received from Trust's
treasurer or other authorized representative (including officers of
Trust’s investment adviser);
|
|
14)
|
Determine
the outstanding receivables and payables for all (1) security trades, (2)
portfolio share transactions and (3) income and expense accounts in
accordance with the budgets provided by Trust or its investment
adviser;
|
|
15)
|
Prepare
Trust’s financial statements for review by fund management and independent
auditors, manage annual and semi-annual report preparation process,
prepare Forms N-SAR, N-Q, N-CSR and 24f-2, provide fund performance data
for annual report, coordinate printing and delivery of annual and
semi-annual reports to shareholders, and file Forms N-SAR, N-Q, N-CSR,
N-PX and 24f-2 and annual/semi-annual reports via XXXXX with the
Securities and Exchange Commission;
|
| Rev. 6.2.2008 |
Page 1 of
4
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Mutual
Fund Administration Agreement
SEI –
83784v7
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
|
16)
|
Monitor
each Portfolio’s compliance with the requirements of Subchapter M of the
Internal Revenue Code with respect to status as a regulated investment
company;
|
|
17)
|
Prepare
and file federal and state tax returns for Trust other than those required
to be prepared and filed by Trust’s transfer agent or
custodian.
|
|
18)
|
Provide
data for year-end 1099s and supplemental tax
letters;
|
|
19)
|
Provide
such fund accounting and financial reports in connection with quarterly
meetings of the board of trustees as the board of trustees may reasonably
request;
|
|
20)
|
Manage
Trust’s proxy solicitation process, including evaluating proxy
distribution channels, coordinating with outside service provider to
distribute proxies, track shareholder responses and tabulate voting
results, and managing the proxy solicitation vendor if
necessary;
|
|
21)
|
Provide
assistant treasurer and assistant
secretary;
|
|
22)
|
Coordinate
with Trust’s counsel on filing of Trust’s registration statements and
proxy statements with the Securities and Exchange Commission, and
coordinate printing and delivery of Trust’s prospectuses and proxy
statements;
|
|
23)
|
Provide
consultation to Trust on regulatory matters relating to the operation of
Trust as requested and coordinate with Trust’s legal counsel regarding
such matters;
|
|
24)
|
Assist
legal counsel to Trust in the development of policies and procedures
relating to the operation of Trust;
|
|
25)
|
Act
as liaison to legal counsel to Trust and, where applicable, to legal
counsel to Trust’s independent
trustees;
|
|
26)
|
Coordinate
with Trust counsel in the preparation, review and execution of contracts
between Trust and third parties, such as Trust’s investment adviser,
transfer agent, and custodian, and record-keepers or shareholder service
providers;
|
|
27)
|
Assist
Trust in handling and responding to routine regulatory examinations with
respect to records retained or services provided by the Administrator, and
coordinate with Trust’s legal counsel in responding to any non-routine
regulatory matters with respect to such
matters;
|
|
28)
|
Provide
consulting with respect to the ongoing design, development and operation
of Trust, including new Portfolios or Share classes and/or load structures
and financing, as well as changes to investment objectives and polices for
existing Portfolios;
|
|
29)
|
Coordinate
as necessary the registration or qualification of Shares with appropriate
state securities authorities;
|
| Rev. 6.2.2008 |
Page 2 of
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Mutual
Fund Administration Agreement
SEI –
83784v7
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
|
30)
|
Manage
the preparation for and conducting of board of trustees meetings by (i)
coordinating board of trustees book production and distribution process,
(ii) subject to review and approval by Trust and its counsel, preparing
meeting agendas, (iii) preparing the relevant sections of the board of
trustees materials required to be prepared by the Administrator, (iv)
assisting to gather and coordinate special materials related to annual
contract renewals and approval of rule 12b-1 plans for and as directed by
the trustees or Trust counsel, (v) attending board of trustees meetings,
and (vi) performing such other board of trustees meeting functions as
shall be agreed by the parties in writing (in this regard, Trust shall
provide the Administrator with notice of regular meetings at least six (6)
weeks before such meeting and as soon as practicable before any special
meeting of the board of trustees);
|
|
31)
|
Cooperate
with, and take all reasonable actions in the performance of its duties
under this Agreement to ensure that all necessary information is made
available to Trust's independent public accountants in connection with the
preparation of any audit or report requested by Trust, including the
provision of a conference room at the Administrator’s location if
necessary (in this regard, Trust’s independent auditors shall provide the
Administrator with reasonable notice of any such audit so that (i) the
audit will be completed in a timely fashion and (ii) the Administrator
will be able to promptly respond to such information requests without
undue disruption of its business);
|
|
32)
|
On
a T+2 post-trade basis and based on the information available to the
Administrator, periodically monitor the Portfolios for compliance with
applicable limitations as set forth in Trust's or any Portfolio’s then
current Trust Materials (this provision shall not relieve Trust’s
investment adviser and sub-advisers, if any, of their primary day-to-day
responsibility for assuring such compliance, including on a pre-trade
basis);
|
|
33)
|
Assist
in obtaining a fidelity bond and directors’ and officers’/errors and
omissions insurance policies for Trust in accordance with the requirements
of Rules 17g-1 and 17d-1(d)(7) under the 1940 Act as such bond and
policies are approved by Trusts board of directors through the
Administrator’s relationship with the Administrator’s insurance
broker;
|
|
34)
|
Coordinate
the filing of the Trust’s fidelity bond with the Securities and Exchange
Commission; and
|
|
35)
|
Additional
Reports and Services.
|
|
·
|
Upon
reasonable notice and as mutually agreed upon, the Administrator may
provide additional reports upon the request of Trust or its investment
adviser, which may result in additional charges, the amount of which shall
be agreed upon between the parties prior to the provision of such
report.
|
|
·
|
Upon
reasonable notice and as mutually agreed upon, the Administrator may
provide such additional services with respect to a Portfolio, which may
result in an additional charge, the amount of which shall be agreed upon
between the parties prior to the provision of such
service.
|
One-Time
Service
Prepare
Trust’s financial statements for the period ending June 30, 2008 based on
information provided by Trust’s prior administrator for review by fund
management and independent auditors, manage semi-annual report preparation
process, prepare Forms N-SAR, N-PX, and N-CSR, coordinate printing and delivery
of semi-annual reports to shareholders, and file Forms N-SAR, N-PX, and N-CSR
and semi-annual reports via XXXXX.
| Rev. 6.2.2008 |
Page 3 of
4
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Mutual
Fund Administration Agreement
SEI –
83784v7
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
For
the avoidance of doubt, the Administrator’s agreement to prepare Form N-PX is
based on the assumption that Trust’s sub-advisers have all necessary information
or have retained third parties to maintain all necessary information required to
prepare such form. In the event that such information is not provided
in a format that is reasonably acceptable to the Administrator, the
Administrator reserves the right to impose additional fees in an amount up to
$10,000 in connection with the preparation of such form.
***
| Rev. 6.2.2008 |
Page 4 of
4
|
Mutual
Fund Administration Agreement
SEI –
83784v7
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
SCHEDULE
III
Schedule of
Fees
Administration and
Accounting Fee:
The
following fees are due and payable monthly to Administrator pursuant to Section 8 of the
Agreement. Trust will be charged the greater of the Asset Based Fee
or the Annual Minimum Fee, in each case calculated in the manner set forth
below.
Asset Based Fees: (calculated
and assessed monthly in arrears based on the aggregate net assets of all mutual
funds registered as investment companies under the 1940 Act advised by Wilshire
Associates Incorporated and/or its affiliates for which the Administrator and/or
any of its affiliates have agreed in writing to provide administration services
substantially similar to the Services (the “Complex Assets”) and
allocated to each such portfolio pro-rata based on the net assets of each
portfolio as of the prior month-end)
|
Complex
Assets
|
Basis
Points
|
|
First
$3 billion in Complex Assets
|
7
|
|
Complex
Assets in excess of $3 billion
|
6
|
Additional
Portfolios/Classes:
|
·
|
$90,000
per annum per Portfolio added after the Effective
Date
|
|
·
|
$15,000
per annum per class added after the Effective
Date
|
Out of Pocket
Expenses:
All
reasonable out of pocket expenses (as set forth in Section 7.02 of this
Agreement) incurred by the Administrator on behalf of Trust will be billed to
Trust quarterly in arrears.
Tax
Services:
Tax
Services (1099’s, etc) are not included in the above fee and will be
specifically addressed with Trust.
One-Time
Service:
The
Wilshire fund complex shall pay the Administrator a one-time fee in the amount
of $75,000 in connection with the Administrator’s performance of both (1) the
One-Time Service set forth in Schedule II of this Agreement and (2) the One-Time
Service set forth in Schedule II of the Administrator’s Administration Agreement
with Wilshire Mutual Funds, Inc. (the “Company”), dated on or about the date
hereof. The $75,000 One-Time Fee will be allocated equitably between the Company
and the Trust on a pro rata basis.
Change of
Terms:
This
schedule is based upon regulatory requirements and Trust’s requirements as set
forth in the Trust Materials as of the Effective Date. Any material
change to any of the foregoing will constitute a material change to this
Agreement. If such a change occurs, the Administrator agrees to
review the change with representatives of Trust and provide information
concerning the feasibility of implementing any additional or enhanced services
and associated costs resulting from such change. The parties shall then in good
faith agree to mutually agreeable terms applicable to such additional or
enhanced service.
| Rev. 6.2.2008 |
Page 1 of
4
|
Mutual
Fund Administration Agreement
SEI –
83784v7
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
Trust
acknowledges and agrees that Administrator reserves the right to impose a five
percent (5%) per annum surcharge on a Portfolio basis against the Portfolios in
the event Trust has not implemented by the first anniversary of this Agreement
an automated trade ticket process with Administrator to facilitate the orderly
and timely processing of Portfolio transactions, valuations and
reconciliations.
Waiver:
The
Administrator hereby agrees to waive an aggregate of up to $162,000 to reimburse
Trust in connection with a payment made by Trust to its prior service
provider. On or before the Effective Date, Trust shall notify the
Administrator in writing of the exact amount of such reimbursement (the “Reimbursement
Amount”). The Administrator shall thereafter credit each of
Trust’s next six invoices in an amount equal to one-sixth of the Reimbursement
Amount.
| Rev. 6.2.2008 |
Page 2 of
4
|
Mutual
Fund Administration Agreement
SEI –
83784v7
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
SCHEDULE
IV
Notice Instruction
Form
TO WHOM
NOTICES SHOULD BE SENT PURSUANT TO SECTION 12.08 OF THE AGREEMENT:
Name of
Party or Parties: Wilshire Mutual
Funds, Inc.
Name of
Contact: Xxxxxxxx X.
Xxxxxxx, President
Address:
0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx
00000
Telephone
No.:
(000) 000-0000
Facsimile
No.: (000)
000-0000
Email
Address:
xxxxxxxx@xxxxxxxx.xxx
| Rev. 6.2.2008 |
Page 3 of
4
|
Mutual
Fund Administration Agreement
SEI –
83784v7
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
SCHEDULE
V
Key
Personnel
Xxxxxx
Xxxxx
Xxxx
Xxxxxxxxxxxx
| Rev. 6.2.2008 |
Page 4 of
4
|
Mutual
Fund Administration Agreement
SEI –
83784v7
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL FUNDS
SERVICES
