Exhibit 2(k)(iii)
UM INVESTMENT TRUST
SUB-ADMINISTRATION AGREEMENT
AGREEMENT made as of the 25th day of February, 2002, by and between
Undiscovered Managers, LLC, a Delaware limited liability company, with its
principal office and place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxx
00000 (the "Administrator"), and Forum Administrative Services, LLC, a Delaware
limited liability company with its principal office and place of business at Xxx
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 ("Forum").
WHEREAS, UM Investment Trust, a Massachusetts business trust (the
"Trust"), is registered under the Investment Company Act of 1940, as amended
(the "1940 Act"), as a closed-end management investment company and may issue
its shares of beneficial interest, no par value (the "Shares"); and
WHEREAS, the Trust intends to offer shares in various series as listed
in Appendix A hereto (each such series, together with all other series
subsequently established by the Trust and made subject to this Agreement in
accordance with Section 7, being herein referred to as a "Fund," and
collectively as the "Funds") and the Trust intends to offer shares of one or
more classes of each Fund as listed in Appendix A hereto (each such class
together with all other classes subsequently established by the Trust in a Fund
being herein referred to as a "Class," and collectively as the "Classes"); and
WHEREAS, the Administrator desires that Forum perform certain
administrative services for each Fund and Class thereof and Forum 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, the Administrator and Forum hereby agree as
follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Administrator hereby appoints Forum, and Forum hereby agrees,
to act as sub-administrator to the Trust for the period and on the terms set
forth in this Agreement.
(b) In connection therewith, the Administrator has delivered to Forum
copies of: (i) the Trust's Declaration of Trust and Bylaws (collectively, as
amended from time to time, "Trust Documents"); (ii) the Trust's Registration
Statement and all amendments thereto filed with the U.S. Securities and Exchange
Commission ("SEC") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the 1940 Act (the "Registration Statement"); (iii) the
Trust's current offering memoranda of each Fund (collectively, as currently in
effect and as amended or supplemented, the "Offering Memorandum"); and (iv) all
procedures adopted by the Trust as of the date hereof with respect to the Funds
relating to the subject matter of this Agreement (e.g., repurchase agreement
procedures), including any procedures adopted as of the date hereof with
respect to the Funds by the Administrator ("Trust Procedures"), and shall
promptly furnish Forum with all amendments of or supplements to the foregoing.
The Administrator shall deliver to Forum a certified copy of the resolution of
the Board of Trustees of the Trust (the "Board") appointing Forum and
authorizing the execution and delivery of this Agreement.
SECTION 2. DUTIES OF FORUM
(a) Subject to the direction and control of the Administrator, Forum
shall manage all aspects of the Trust's operations with respect to the Funds
except those that are the responsibility of any other service provider hired by
the Trust, all in such manner and to such extent as may be authorized by the
Administrator.
(b) Without limiting the generality of Section 2(a), with respect to
the Administrator or each Fund, as applicable, and in accordance with the Trust
Procedures, the Offering Memorandum, the 1940 Act and all other applicable
federal and state securities laws and regulations, Forum shall:
(i) at the Administrator's expense, provide the Trust with, or arrange
for the provision of, the services of persons competent to perform such
legal, administrative and clerical functions not otherwise described in
this Section 2(b) as are necessary to provide effective operation of
the Trust;
(ii) oversee (A) the preparation and maintenance by the Trust's
custodian, transfer agent, dividend disbursing agent and fund
accountant in such form, for such periods and in such locations as may
be required by applicable United States law, of all documents and
records relating to the operation of the Trust required to be prepared
or maintained by the Trust or its agents pursuant to applicable law;
(B) the reconciliation of account information and balances among the
Trust's custodian, transfer agent, dividend disbursing agent and fund
accountant; (C) the transmission of purchase and redemption orders for
Shares; and (D) the performance of fund accounting, including the
calculation of the net asset value of the Shares;
(iii) oversee the performance of administrative and professional
services rendered to the Trust by others, including its adviser,
sub-adviser, distributor, custodian, transfer agent and dividend
disbursing agent as well as legal, auditing, shareholder servicing and
other services performed for the Funds and report to the Board on the
performance of such organizations;
(iv) provide the Trust with adequate general office space and
facilities and provide persons suitable to the Board to serve as
officers of the Trust;
(v) with the cooperation of the Trust's investment advisers, the
officers of the Trust and other relevant parties, prepare and
disseminate materials, including notices of meetings, agenda,
memoranda, resolutions and background material, for meetings of the
-2-
Board (including, without limitation, 10f-3, 17a-7, 17e-1 reports), as
applicable, including a general report to the Board covering the
Trust's operations;
(vi) file or oversee the filing of each document required to be filed
by the Trust in either written or, if required, electronic format
(e.g., electronic data gathering analysis and retrieval system or
"XXXXX") with the SEC;
(vii) assist in and oversee the preparation, filing and printing and
the periodic updating of the Registration Statement and each Offering
Memorandum, including supplements thereto;
(viii) assist in and oversee the preparation and printing of proxy and
information statements and related communications to shareholders;
(ix) assist the Trust's investment advisers and other appropriate
persons with respect to regulatory compliance matters including,
without limitation, monitoring and developing compliance procedures for
the Funds of the Trust relating to compliance with each Fund's
investment objective, policies, restrictions, tax matters and
applicable law and regulations;
(x) prepare, file and maintain the Trust Documents and minutes of
meetings of the Board, Board committees and shareholders (including in
compliance with Rules 31a-1(b)(4) and 31a-1(b)(9)(ii) under the 1940
Act);
(xi) maintain the Trust's existence and good standing under applicable
state law;
(xii) monitor sales of Shares, ensure that notices of the sale of
Shares on Form D are properly filed with the SEC and States, or prepare
such notice filings with respect to, the Shares with the SEC and the
various State and other securities commissions;
(xiii) advise the Trust and the Board on matters concerning the Trust
and its affairs;
(xiv) assist the Trust in the selection of other service providers,
such as independent accountants, law firms and proxy solicitors;
(xv) calculate, review and account for Fund expenses (including
advisory fees and waivers) and report on Fund expenses on a periodic
basis;
(xvi) authorize the payment of Trust expenses and pay, from Trust
assets, all bills of the Trust;
(xvii) prepare Fund budgets, pro-forma financial statements, expense
and profit/loss projections and fee waiver/expense reimbursement
projections on a periodic basis;
(xviii) prepare financial statement expense information;
-3-
(xix) request any necessary information from the Trust's transfer
agent, fund accountant, investment advisers and distributor in order to
prepare, and prepare, the Trust's Form N-SAR twice a year and any
required financial data schedules;
(xx) file the Funds' annual and semi-annual financial statements with
the SEC or ensure that the Funds' financial statements are filed with
the SEC and oversee the distribution of the financial statements to
shareholders;
(xxi) produce quarterly compliance reports for the Board;
(xxii) calculate data with respect to yields, dividend yields,
distribution rates and total returns for dissemination to information
services covering the investment company industry, for advertising and
sales literature of the Trust and other appropriate purposes;
(xxiii) as instructed by the Administrator and if applicable, report
Fund data to investment company industry survey companies (e.g.,
Lipper, Inc.);
(xxiv) maintain applicable CUSIP, ticker, news media and tax
identification number listings;
(xxv) report applicable data to rating agencies (such as Standard &
Poors) that rate a Fund;
(xxvi) supervise the declaration of dividends and other distributions
to shareholders and prepare and distribute to appropriate parties
notices announcing the declaration of dividends and other distributions
to shareholders;
(xxvii) prepare Federal income and excise tax workpapers and
provisions;
(xxviii) prepare and, if requested by the Administrator, execute (on
behalf of the Trust) and file all Federal income and excise tax returns
and state income and other tax returns, including any extensions or
amendments, each as agreed between the Administrator and Forum;
(xxix) calculate required Fund distributions to maintain the
qualification of each Fund as a regulated investment company under the
Internal Revenue Code of 1986, as amended (the "Code") and avoid, if
applicable, Federal excise tax;
(xxx) perform other tax compliance and related reporting (limited to
calculation of Code Section 851(b) "good income" and "diversification"
testing, reporting the tax status of distributions and preparing
year-end Federal tax notice data);
(xxxi) prepare financial statement tax provisions (limited to sixty
(60) day shareholder tax notices disclosure, tax related footnotes and
Statement of Position 95-3 ("ROCSOP") adjustments);
-4-
(xxxii) calculate income distributions for Funds that declare income
distributions more often than annually but not daily and calculate
capital gain distributions (in addition to typical calendar year end
capital gain distributions);
(xxxiii) perform monthly capital gain analyses based on book numbers
adjusted for prior year unpaid spillback distribution requirements and
capital loss carryforwards; and
(xxxiv) provide a summary of its review of all advertising and sales
literature for the Funds to the Adviser three business days after any
routine advertising or sales literature is proposed and received by
Forum's compliance department (five business days after any
extraordinary advertising or sales literature is proposed and
received);
(xxxv) provide a summary of its review of all Offering Memorandum and
Registration Statements prepared by a Fund five business days after any
such Offering Memorandum or Registration Statement is proposed and
received by Forum's compliance department;
(xxxvi) if requested by the Administrator, assist the Administrator and
any placement agent for the Trust in performing under any active
solicitation agent, placement agent or other similar agreements related
to the distribution or servicing of the Funds with broker-dealers and
other financial intermediaries ("Dealers");
(xxxvii) if applicable, maintain membership with the National
Securities Clearing Trust ("NSCC") with respect to the Funds so as to
enable the Shares to be traded through FundSERV and negotiate and
execute appropriate agreements related thereto with NSCC;
(xxxviii) pay to Dealers (on behalf of and as an expense of the Trust)
or direct the Funds' transfer agent to pay to Dealers front-end
commissions (if not deducted from the offering price by a Dealer),
other up-front payments with respect to the sale of Shares (for
instance, payments with respect to the sale of Shares that have
back-end commissions), distribution, service payments and other
payments as may be properly disclosed in a Fund's Offering Memorandum
(collectively, "Dealer Distribution Payments");
(xxxix) obtain from attorneys employed by Forum or its affiliates the
legal services identified in Appendix C hereto if not otherwise
provided by outside vendors; and
(xxxx) perform such other record keeping, reporting and other tasks as
may be specified from time to time by the Administrator.
(c) Forum shall provide such other services and assistance relating to
the affairs of the Trust as the Trust may, from time to time, reasonably request
pursuant to mutually acceptable compensation and implementation agreements.
(d) Forum shall maintain all records relating to its services, such as
journals, ledger accounts and other records, as are required to be maintained
under the 1940 Act and Rule 31a-1
-5-
thereunder. The books and records pertaining to the Trust that are in possession
of Forum shall be the property of the Trust. The Trust and the Administrator, or
the Trust's authorized representatives, shall have access to such books and
records at all times during Forum's normal business hours. Upon the reasonable
request of the Administrator, copies of any such books and records shall be
provided promptly by Forum to the Trust, the Administrator or the Trust's
authorized representatives at the Administrator's expense. In the event the
Administrator designates a successor that shall assume any of Forum's
obligations hereunder, Forum shall, at the expense and direction of the
Administrator, transfer to such successor all relevant books, records and other
data established or maintained by Forum under this Agreement.
(e) Nothing contained herein shall be construed to require Forum to
perform any service that could cause Forum 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 a Fund to act in contravention of the Fund's Offering
Memorandum or any provision of the 1940 Act. In connection with the subject
matter of this Agreement, except with respect to Forum's duties as set forth in
this Section 2 and except as otherwise specifically provided herein, as between
the Administrator and Forum, the Administrator assumes all responsibility for
ensuring that the Trust complies with all applicable requirements of the
Securities Act, the 1940 Act, the 1934 Act and any laws, rules and regulations
of governmental authorities with jurisdiction over the Trust. The parties
acknowledge and agree that affiliates of Forum may have separately contracted
with the Trust to provide other services to the Trust. 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 Forum to perform the services required by this Section
2, the Administrator (i) shall cause all service providers to the Trust (other
than those service providers affiliated with Forum) to furnish any and all
information to Forum, and assist Forum as may be required and (ii) shall ensure
that Forum has access to all records and documents maintained by the Trust or
any service provider to the Trust (other than those service providers affiliated
with Forum).
SECTION 3. STANDARD OF CARE; LIMITATION OF LIABILITY; INDEMNIFICATION
(a) Forum shall be under no duty to take any action except as
specifically set forth herein or as may be specifically agreed to by Forum in
writing. Forum shall use its best judgment and efforts in rendering the services
described in this Agreement. Forum shall not be liable to the Administrator or
the Trust for any action or inaction of Forum relating to any event whatsoever
in the absence of bad faith, willful misfeasance or gross negligence in the
performance of Forum's duties or obligations under this Agreement or by reason
of Forum's reckless disregard of its duties and obligations under this
Agreement.
(b) The Administrator agrees to indemnify and hold harmless Forum, its
employees, agents, directors, officers and managers and any person who controls
Forum within the meaning of section 15 of the Securities Act or section 20 of
the Securities Exchange Act of 1934, as
-6-
amended (the "1934 Act") ("Forum Indemnitees"), against and from any and all
claims, demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses of every nature and
character arising out of or in any way related to Forum's actions taken or
failures to act with respect to a Fund that are consistent with the standard of
care set forth in Section 3(a) or based, if applicable, on good faith reliance
upon an item described in Section 3(d) (a "Forum Claim"). The Trust shall not be
required to indemnify any Forum Indemnitee if, prior to confessing any Forum
Claim against the Forum Indemnitee, Forum or the Forum Indemnitee does not give
the Corporation written notice of and reasonable opportunity to defend against
the Forum Claim in its own name or in the name of the Forum Indemnitee.
(c) Forum agrees to indemnify and hold harmless the Administrator, its
employees, agents, management committee members, officers, and managers
("Administrator Indemnitees"), against and from any and all claims, demands,
actions, suits, judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and character arising
out of or in any way related to (i) Forum's actions taken or failures to act
with respect to a Fund that are not consistent with the standard of care set
forth in Section 3(a) or based, if applicable, on good faith reliance upon an
item described in Section 3(d), or (ii) any breach of Forum's representations
set forth in Section 4 (a "Administrator Claim"). Forum shall not be required to
indemnify any Administrator Indemnitee if, prior to confessing any Administrator
Claim against the Administrator Indemnitee, the Administrator or the
Administrator Indemnitee does not give Forum written notice of and reasonable
opportunity to defend against the Administrator Claim in its own name or in the
name of the Administrator Indemnitee.
(d) Neither Forum nor any other Forum Indemnitee shall be liable for
any action taken or failure to act in reasonable and good faith reliance upon,
and shall be indemnified by the Administrator for any action taken or omitted by
it in reasonable reliance upon:
(i) the advice of the Administrator or of counsel to the Administrator;
(ii) any oral instruction which it receives and which it reasonably
believes in good faith was transmitted by a person or persons
authorized by the Board or by the Administrator to give such oral
instruction. Provided that Forum has such reasonable belief, Forum
shall have no duty or obligation to make any inquiry or effort of
certification of such oral instruction;
(iii) any written instruction or certified copy of any resolution of
the Board, and Forum may rely upon the genuineness of any such document
or copy thereof reasonably believed in good faith by Forum to have been
validly executed; or
(iv) as to genuineness, any signature, instruction, request, letter of
transmittal, certificate, opinion of counsel, statement, instrument,
report, notice, consent, order, or other document reasonably believed
in good faith by Forum to be genuine and to have been signed or
presented by the Administrator or other proper party or parties;
-7-
and no Forum Indemnitee 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 Forum reasonably believes in good faith
to be genuine.
(e) Forum shall not be liable for the errors of other service providers
to the Administrator or the Trust or their systems, including the errors of
pricing services (other than to pursue all reasonable claims against the pricing
service based on the pricing services' standard contracts entered into by Forum)
and errors in information provided by an investment adviser (including prices
and pricing formulas and the untimely transmission of trade information),
custodian or transfer agent to the Trust. This section 3(e) shall not prohibit
the Trust or the Administrator from making a claim against an affiliate of Forum
under any agreement between such affiliate and such part(ies).
(f) Forum shall notify the Trust should its insurance coverage with
respect to professional liability or errors and omissions coverage be canceled
or reduced. Such notification shall include the date of change and the reasons
therefor. Forum shall notify the Trust of any material claims against it with
respect to services performed under this Agreement, whether or not they may be
covered by insurance, and shall notify the Trust from time to time as may be
appropriate of the total outstanding claims made by Forum under its insurance
coverage.
SECTION 4. REPRESENTATIONS AND WARRANTIES
(a) Forum represents and warrants to the Administrator that:
(i) It is a limited liability company duly organized and existing 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
to perform its duties and obligations under this Agreement; and
(vi) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of Forum, enforceable against Forum
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.
-8-
(b) The Administrator represents and warrants to Forum that:
(i) It is a limited liability company duly organized and existing and
in good standing under the laws of Delaware;
(ii) It is empowered under applicable laws and by its limited liability
company agreement to enter into this Agreement and perform its duties
under this Agreement;
(iii) All requisite corporate or other proceedings have been taken to
authorize it to enter into this Agreement and perform its duties under
this Agreement;
(iv) The Trust is a closed-end management investment company registered
under the 1940 Act and the Trust has filed and will maintain in effect
a registration statement to such effect; and
(v) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Administrator, enforceable
against the Administrator 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.
SECTION 5. COMPENSATION AND EXPENSES
(a) In consideration of the administrative services provided by Forum
pursuant to this Agreement, the Administrator shall pay Forum, with respect to
each Class of each Fund the fees set forth in Appendix B hereto.
The fees payable for the services listed in clause (i) of Appendix B
hereto shall be payable monthly in arrears within fifteen (15) business days
following receipt of the respective billing notice for services performed during
the prior calendar month. If fees payable for the services listed in clause (i)
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 that 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. Within
fifteen (15) days after the termination of this Agreement with respect to a
Fund, the Administrator shall pay to Forum such compensation relating to such
Fund as shall be payable prior to the effective date of such termination.
Nothing in this Agreement shall require Forum to perform any of the
services listed in Section 2(a)(xxix), if such services are performed by the
Fund's independent accountants.
In the event that any of the legal services identified in Appendix C
hereto are provided to the Administrator or the Trust by personnel of the legal
department of Forum, they will be provided at no additional charge to the
Administrator except those matters designated as Special Legal Services, as to
which Forum may charge, and the Administrator shall pay an additional
-9-
amount as reimbursement of the reasonable costs of Forum providing such
services. Reimbursement shall be payable monthly in arrears fifteen (15) days
after the xxxx is received for services performed under this Agreement during
the prior calendar month. Nothing in this Agreement shall require Forum to
provide any of the services listed in Appendix C hereto, if such services are
performed by an outside vendor.
(b) In connection with the services provided by Forum pursuant to this
Agreement, the Administrator, on behalf of each Fund, agrees to reimburse Forum
for the expenses set forth in Clause (ii) of Appendix B hereto. Reimbursements
shall be payable as incurred. Should the Administrator exercise its right to
terminate this Agreement, the Administrator shall reimburse Forum for all
reasonably incurred out-of-pocket expenses and reasonable employee time (at 150%
of salary) associated with the copying and movement of records and material to
any successor person and providing assistance to any successor person in the
establishment of the accounts and records necessary to carry out the successor's
responsibilities; provided, however, that, notwithstanding anything herein to
the contrary, the Administrator shall have no obligation to reimburse Forum for
such expenses and employee time if the Administrator has terminated this
Agreement because Forum has been negligent in its actions (or omissions to act)
taken in its performance of its obligations under this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, Forum
and its affiliated persons may receive compensation or reimbursement from the
Administrator with respect to: (i) the provision of services on behalf of the
Funds in accordance with any Plan or Service Plan; (ii) the provision of
shareholder support or other services; (iii) service as a director or officer of
the Administrator; and (iv) services to the Administrator, which may include the
types of services described in this Agreement, with respect to the creation of
any Fund and the start-up of the Fund's operations.
(d) Forum shall not be responsible for and will not assume the
obligation for payment of the expenses of the Administrator or the Trust,
including: (i) the fees payable to each investment adviser under an agreement
between the investment adviser and the Corporation; (ii) expenses of issue,
repurchase and redemption of Shares; (iii) interest charges, taxes and brokerage
fees and commissions; (iv) premiums of insurance for the Administrator or the
Trust, the Trustees and officers and fidelity bond premiums; (v) fees, interest
charges and expenses of third parties, including the Administrator's or the
Trust's counsel, independent accountants, custodians, transfer agents, dividend
disbursing agents and fund accountants; (vi) fees of pricing, interest,
dividend, credit and other reporting services; (vii) costs of membership in
trade associations; (viii) telecommunications expenses; (ix) funds transmission
expenses; (x) auditing, legal and compliance expenses; (xi) costs of forming the
Trust and maintaining its existence; (xii) costs of preparing, filing and
printing the Trust's Offering Memorandum, subscription application forms and
shareholder reports and other communications and delivering them to existing
shareholders, whether of record or beneficial; (xiii) expenses of meetings of
shareholders and proxy solicitations therefor; (xiv) costs of reproduction,
stationery, supplies and postage; (xv) fees and expenses of the Trust's Trustees
and officers; (xvi) costs of other personnel (who may be employees of the
investment adviser, Forum or their respective affiliated persons) performing
services for the Administrator or the Trust; (xvii) costs of Board, Board
committee, and other corporate
-10-
meetings; (xviii) SEC registration fees and related expenses (if applicable);
(xix) state, territory or foreign securities laws exemption filing or
registration fees and related expenses; and (xx) all fees and expenses paid by
the Trust related to the distribution of its Shares.
SECTION 6. EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT
(a) This Agreement shall become effective with respect to each Fund or
Class on the earlier of the date on which the Trust's Registration Statement
relating to the Shares of the Fund or Class becomes effective or the date of the
commencement of investment operations of the Fund or Class. Upon effectiveness
of this Agreement, it shall supersede all previous agreements between the
parties hereto covering the subject matter hereof insofar as such Agreement may
have been deemed to relate to the Funds.
(b) This Agreement shall continue in effect with respect to a Fund
until terminated.
(c) This Agreement may be terminated with respect to a Fund at any
time, without the payment of any penalty (i) by the Board on sixty (60) days'
written notice to Forum or (ii) by Forum on sixty (60) days' written notice to
the Trust. Subject to the immediately preceding sentence, any termination shall
be effective as of the date specified in the notice. Upon notice of termination
of this Agreement by either party, Forum shall promptly transfer to the
successor transfer agent, if any, the original or copies of all books and
records maintained by Forum under this Agreement including, in the case of
records maintained on computer systems, copies of such records in
machine-readable form, and shall cooperate with, and provide reasonable
assistance to, the successor transfer agent in the establishment of the books
and records necessary to carry out the successor transfer agent's
responsibilities.
(d) The provisions of Sections 2(d), 3, 5, 6(d), 6(e), 8, 12, and 13
shall survive any termination of this Agreement.
(e) This Agreement and the rights and duties under this Agreement
otherwise shall not be assignable by either Forum or the Administrator 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 assigns of the parties hereto.
SECTION 7. ADDITIONAL FUNDS AND CLASSES
In the event that the Trust establishes one or more series of Shares or
one or more classes of Shares after the effectiveness of this Agreement, such
series of Shares or classes of Shares, as the case may be, shall become Funds
and Classes under this Agreement, provided, however, that either Forum or the
Administrator may elect not to make any such series or classes subject to this
Agreement, which election must be made in writing to the other party.
-11-
SECTION 8. CONFIDENTIALITY
Forum agrees to treat all records and other information related to the
Trust as proprietary information of the Trust and, on behalf of itself and its
employees, to keep confidential all such information, except that Forum may with
the consent of the Trust:
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(b) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies; and
(c) release such other information (i) as approved in writing by the
Administrator, which approval shall not be unreasonably withheld and may not be
withheld where Forum will (in its reasonable opinion) be exposed to civil or
criminal contempt proceedings for failure to release the information (provided,
however, that Forum shall seek the approval of the Administrator as promptly as
possible so as to enable the Administrator to pursue such legal or other action
as it may desire to prevent the release of such information) or (ii) when so
requested by the Administrator.
SECTION 9. FORCE MAJEURE
Neither Forum nor the Administrator shall be responsible or liable for
any failure or delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
reasonable control including, without limitation, acts of civil or military
authority, national emergencies, labor difficulties, fire, mechanical
breakdowns, flood or catastrophe, acts of God, insurrection, war, riots or
failure of the mails or any transportation medium, communication system or power
supply; provided, however, that in each specific case such circumstance shall be
beyond the reasonable control of the party seeking to apply this force majeure
clause.
In addition, to the extent Forum's obligations hereunder are to oversee
or monitor the activities of third parties (other than those that are affiliates
of Forum), Forum shall not be liable for any failure or delay in the performance
of Forum's duties caused, directly or indirectly, by the failure or delay of
such third parties that are not affiliates of Forum in performing their
respective duties or cooperating reasonably and in a timely manner with Forum.
SECTION 10. ACTIVITIES OF FORUM
(a) Except to the extent necessary to perform Forum's obligations under
this Agreement, nothing herein shall be deemed to limit or restrict Forum's
right, or the right of any of Forum's managers, officers or employees who also
may be a trustee, officer or employee of the Trust, or persons who are otherwise
affiliated persons of the Trust to engage in any other business or to devote
time and attention to the management or other aspects of any other business,
-12-
whether of a similar or dissimilar nature, or to render services of any kind to
any other corporation, trust, firm, individual or association.
(b) Forum may subcontract any or all of its functions or
responsibilities pursuant to this Agreement to one or more persons, which may be
affiliated persons of Forum, who agree to comply with the terms of this
Agreement; provided, however, that any such subcontracting shall not relieve
Forum of any of its responsibilities hereunder and Forum shall be as fully
responsible to the Administrator for the acts and omissions of any
sub-contractor as Forum is for its own acts and omissions. Forum may pay those
persons for their services, but no such payment will increase Forum's
compensation or reimbursement of expenses from the Administrator.
(c) Without limiting the generality of the Sections 10(a) and (b), the
Administrator acknowledges that certain legal services may be rendered to it by
lawyers who are employed by Forum or its affiliates and who render services to
Forum and its affiliates. A lawyer who renders such services to the
Administrator, and any lawyer, who supervises such lawyer, although employed
generally by Forum or its affiliates, will have a direct professional
attorney/client relationship with the Administrator. Those services for which
such a direct relationship may exist are listed in Appendix C hereto. Each of
Forum and the Administrator hereby consents to the simultaneous representation
by such lawyers of both Forum and the Administrator, and waives any general
conflict of interest existing in such simultaneous representation. Furthermore,
the Administrator agrees that, in the event such lawyer ceases to represent the
Administrator, whether at the request of the Administrator or otherwise, the
lawyer may continue thereafter to represent Forum, and the Administrator
expressly consents to such continued representation.
SECTION 11. COOPERATION WITH INDEPENDENT ACCOUNTANTS
Forum shall cooperate, if applicable, with each Fund's independent
public accountants and shall take reasonable action to make all necessary
information available to the accountants for the performance of the accountants'
duties.
SECTION 12. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The managers of the Administrator and the members of the Administrator
shall not be liable for any obligations of the Administrator under this
Agreement, and Forum agrees that, in asserting any rights or claims under this
Agreement, it shall look only to the assets and property of the Administrator in
settlement of such rights or claims, and not to the managers or members of the
Administrator.
SECTION 13. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement.
-13-
(b) Except for Appendix A to add new Funds and Classes in accordance
with Section 7, no provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed by
both parties hereto.
(c) 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.
(d) This Agreement constitutes the entire agreement between the parties
hereto, and supersedes any prior agreement, with respect to the subject matter
hereof, whether oral or written.
(e) This Agreement may be executed by the parties hereto on any number
of counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) 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 Forum
and Administrator and no presumptions shall arise favoring any party by virtue
of authorship of any provision of this Agreement.
(g) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by the
parties at their respective principal places of business, or at such other
address as a party may have designated in writing, shall be deemed to have been
properly given.
(i) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund of the Corporation are
separate and distinct from the assets and liabilities of each other Fund and
that no Fund shall be liable or shall be charged for any debt, obligation or
liability of any other Fund, whether arising under this Agreement or otherwise.
(j) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on any day
other than a Fund business day. Functions or duties normally scheduled to be
performed on any day which is not a Fund business day shall be performed on, and
as of, the next Fund business day, unless otherwise required by law.
(k) No affiliated person, employee, agent, director, officer or manager
of Forum shall be liable at law or in equity for Forum's obligations under this
Agreement.
-14-
(l) Each of the undersigned warrants and represents that they have full
power and authority to sign this Agreement on behalf of the party indicated and
that their signature will bind the party indicated to the terms hereof and each
party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party 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.
(m) The terms "affiliated person" and "assignment" shall have the
meanings ascribed thereto in the 1940 Act.
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.
UNDISCOVERED MANAGERS, LLC
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Xxxx X. Xxxxxx
Chairman & CEO
FORUM ADMINISTRATIVE SERVICES, LLC
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Xxxx X. Xxxxxxxx
Director
-15-
UM INVESTMENT TRUST
SUB-ADMINISTRATION AGREEMENT
APPENDIX A
FUNDS OF THE TRUST:
UM Multi-Strategy Fund
CLASSES OF THE TRUST:
-A1-
UM INVESTMENT TRUST
SUB-ADMINISTRATION AGREEMENT
APPENDIX B
FEES AND EXPENSES
(i) PER FUND ASSET CHARGE AS AN ANNUALIZED PERCENTAGE OF DAILY NET ASSETS:
o 0.10% (10 basis points) on first $30 million.
o 0.05% (5 basis points) on assets between $30 million and $200
million.
o 0.025% (2.5 basis points) on assets over $200 million.
o Subject to a $3,000 per month minimum.
(ii) OUT-OF-POCKET EXPENSES
The Trust, on behalf of the applicable Fund, shall reimburse Forum for
all reasonable out-of-pocket and ancillary expenses in providing the
services described in this Agreement, including but not limited to the
reasonable cost of (or appropriate share of the cost of): (i)
telecommunications expenses, (ii) costs of reproduction, stationary,
supplies and postage, (iii) costs of preparing, filing and printing the
Trust's offering documents, subscription application forms and
shareholder reports and other communications and delivering them to
existing shareholders, whether of record or beneficial, (iv) expenses
of meetings of shareholders and proxy solicitations therefor, (v) SEC
registration fees and related expenses, and (vi) state, territory or
foreign securities laws notice and/or registration fees and related
expenses.
-B1-
UM INVESTMENT TRUST
SUB-ADMINISTRATION AGREEMENT
APPENDIX C
LEGAL SERVICES
1. Advise the Administrator and the Trust on compliance with applicable
U.S. laws and regulations with respect to matters that are within the
ordinary course of the Trust's business.
2. Advise the Administrator and the Trust on compliance with applicable
U.S. laws and regulations with respect to matters that are outside the
ordinary course of the Trust's business (*).
3. Liaison with the SEC.
4. Draft correspondences to SEC and respond to SEC comments.
5. Liaison with the Administrator or the Trust's outside counsel.
6. Provide attorney letters to the Trust's auditors.
7. Assist outside counsel to the Administrator or the Trust in the
preparation of exemptive applications, no-action letters, prospectuses,
Forms N-2 and proxy statements and related material.
8. Prepare exemptive applications, no-action letters, prospectuses, Forms
N-2 and proxy statements and related material, and draft
correspondences to SEC and respond to SEC comments with respect
thereto(*).
9. Prepare prospectus supplements.
10. Prepare and/or review agendas and minutes for and respond to inquiries
at board and shareholder meetings regarding applicable U.S. laws and
regulations.
11. Prepare and/or review agreements between the Trust and any third
parties.
Note: Items designated with an (*) are Special Legal Services.
-C1-
