EXHIBIT 9(a)
Administration Agreement between State Street Bank and Trust Company
Integrity Research & Management, Inc. and The Valiant Fund
ADMINISTRATION AGREEMENT
Agreement dated as of September 1, 1994 between State Street Bank
and Trust Company, a Massachusetts trust company (the "Bank") and The Valiant
Fund, a Massachusetts business trust (the "Trust"), and Integrity Management
& Research, Inc., a Florida corporation ("Integrity Management").
WHEREAS, the Bank provides certain administrative and other
services to investment companies and others; and
WHEREAS, the Trust desires to retain the Bank to render certain
administrative and other services with respect to the Trust and the Bank is
willing to render such services on the terms and conditions hereinafter set
forth; and
WHEREAS, Integrity Management is responsible for management of the
business affairs and the investments of the Trust under a certain Management
Agreement dated July 19, 1993 between the Trust and Integrity Management
under which Integrity Management is obligated to perform or arrange for the
performance of any pay for administrative services for the Trust;
NOW, THEREFORE, the parties hereto agree as follows:
1. APPOINTMENT OF BANK
The Trust hereby appoints the Bank to act as administrator with
respect to the Trust for purposes of providing certain administrative
services for the period and on the terms set forth in this Agreement. The
Bank accepts such appointment and agrees to render the services stated herein
and to provide the office facilities and the personnel required by it to
perform such services. In connection with such appointment, the Trust will
deliver to the Bank copies of each of the following documents and will
deliver to it all future amendments and supplements, if any:
A. Certified copies of the Agreement and Declaration of Trust as
presently in effect and as amended from time to time;
B. The Trust's most recent registration statement on Form N-1A as
filed with, and declared effective by, the U.S. Securities and Exchange
Commission, and all amendments thereto;
C. Each resolution of the Board of Trustees of the Trust
authorizing the original issue of its shares;
D. Certified copies of the resolutions of the Trust's Board of
Trustees authorizing: (1) this Agreement, (2) certain officers and trustees
of the Trust to give instructions to the Bank pursuant to this Agreement and
(3) certain officers and employees of the Trust to sign checks and pay
expenses on behalf of the Trust, respectively;
E. A copy of the Management Agreement;
F. A copy of the Investment Advisor Agreement between the Trust
and the Advisor;
G. A copy of the Custodian Agreement between the Trust and its
custodian;
H. A copy of the Transfer Agency and Registrar Agreement between
the Trust and its transfer agent; and
I. Such other certificates, documents or opinions which the Bank
may, in its reasonable discretion, deem necessary or appropriate in the
proper performance of its duties.
2. REPRESENTATION AND WARRANTIES OF THE BANK
The Bank represents and warrants to the Trust that:
A. It is a Massachusetts trust company, duly organized and
existing in good standing under the laws of the Commonwealth of Massachusetts;
B. It is duly qualified to carry on its business in the
Commonwealth of Massachusetts;
C. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement; and
D. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement.
3. AUTHORIZED SHARES
The Trust certifies to the Bank that, as of the close of business
on the date of this Agreement, the Trust is authorized to issue shares of
beneficial interest, and that it would initially offer shares in the
authorized amounts as set forth in Schedule A attached hereto.
4. ADMINISTRATION SERVICES
The Bank shall discharge the responsibilities set forth in Schedule
B hereof subject to the control of the Trust in accordance with procedures
established from time to time between the Trust and the Bank.
It is the responsibility of the Trust and/or its legal counsel and
accountants to notify the Bank in a timely manner of any change to any rule,
regulation, law or statute that will affect the services to be provided
hereunder. The Bank and the Trust agree that all services provided
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hereunder are subject to review and correction by the Trust's accountants
and/or legal counsel and the services provided by Bank shall not constitute
the practice of public accountancy or law.
5. SERVICES TO BE OBTAINED BY THE TRUST
The Trust shall provide for any of its own:
A. Organizational expenses;
B. Services of an independent accountant;
C. Services of outside legal and tax counsel (including such
counsel's review of the Trust's registration statement, proxy materials,
federal and state tax qualification as a regulated investment company, and
other reports and materials prepared by the Bank under this Agreement);
D. Any services contracted for by the Trust directly from parties
other than the Bank;
E. Trading operations and brokerage fees, commissions and
transfer taxes in connection with the purchase and sale of securities for the
Trust;
F. Investment advisory services;
G. Taxes, insurance premiums and other fees and expenses
applicable to its operation;
H. Costs incidental to any meetings of shareholders including,
but not limited to, legal and accounting fees, proxy filing fees and the
preparation, printing and mailing of any proxy materials;
I. Administration of and costs incidental to Trustees' meetings,
including fees and expenses of Trustees;
J. The salary and expenses of any officer, trustee or employee of
the Trust;
K. Costs incidental to the preparation, printing and distribution
of the Trust's registration statements and any amendments thereto, and
shareholder reports;
L. All applicable registration fees and filing fees required
under the securities laws of the United States and state regulatory
authorities;
M. Preparation and filing of the Trust's tax returns, Form N-1A,
Annual Report and Semi-Annual Report on Form N-SAR, and all notices,
registrations and amendments associated with applicable tax and securities
laws of the United States and state regulatory authorities; and
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N. Fidelity bond and directors' and officers' liability insurance.
6. FEES
The Bank shall receive from the Trust such compensation for the
Bank's services provided pursuant to this Agreement as may be agreed to from
time to time in a written fee schedule approved by the parties hereto and
initially set forth herein in Schedule C attached hereto. In addition, the
Bank shall be reimbursed by the Trust for the out-of-pocket costs incurred in
connection with this Agreement.
7. INSTRUCTIONS
At any time the Bank may apply to any officer or trustee of the
Trust for instructions and may consult with legal counsel for the Trust, or
its own legal counsel, the outside counsel for the Trust or the auditors for
the Trust at the expense of the Trust, with respect to any matter arising in
connection with the services to be performed by the Bank under this
Agreement. The Bank shall not be liable and shall be indemnified by the
Trust for any action taken or omitted by it in good faith in reliance upon
such instructions or upon any paper or document believed by it to be genuine
and to have been signed by the proper person or persons. The Bank shall not
be held to have notice of any change of authority of any person until receipt
of written notice thereof from the Trust.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
A. The Bank shall be responsible for the performance of only such
duties as are set forth herein and shall have no responsibility for the
actions or activities of any other party including other service providers.
The Bank shall have no liability for any loss or damage resulting from the
performance or nonperformance of its duties hereunder unless solely caused by
or resulting from the gross negligence or willful misconduct of the Bank, its
officers or employees. In any event, the Bank's liability shall be limited
to its total annual compensation earned and fees paid hereunder during the
preceding twelve months for any liability or loss suffered by the Trust
including, but not limited to, any liability relating to qualification of the
Trust as a regulated investment company or any liability relating to the
Trust's compliance with any federal or state tax or securities statute,
regulation or ruling.
B. The Trust shall indemnify and hold the Bank harmless from all
loss, cost, damage and expense, including reasonable expenses for counsel,
incurred by the Bank resulting from any claim, demand, action or suit in
connection with the Bank's acceptance of this Agreement, any action or
omission by it in the performance of its duties hereunder, or as a result of
acting upon any instructions reasonably believed by it to have been executed
by a duly authorized officer of the Manager or of the Trust, provided that
this indemnification shall not apply to actions or omissions of the Bank, its
officers or employees in cases of its or their own gross negligence or
willful misconduct.
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C. The Trust will be entitled to participate at its own expense
in the defense, or, if it so elects, to assume the defense of any suit
brought to enforce any liability subject to the indemnification provided
above. In the event the Trust elects to assume the defense of any such suit
and retain such counsel, the Bank or any of its affiliated persons, named as
defendant or defendants in the suit, may retain additional counsel but shall
bear the fees and expenses of such counsel unless the Trust shall have
specifically authorized the retaining of such counsel.
D. The indemnification contained herein shall survive the
termination of this Agreement.
E. This Section 8 shall not apply with respect to services
covered by the Custodian Agreement or the Transfer Agency and Registrar
Agreement.
9. CONFIDENTIALITY
The Bank agrees that, except as otherwise required by law, it will
keep confidential the terms of this Agreement, all records and information in
its possession relating to the Trust or its shareholders or shareholder
accounts and will not disclose the same to any person except at the request
or with the written consent of the Trust.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS
The Trust assumes full responsibility for complying with all
applicable requirements of the Investment Company Act, the Securities Act of
1933, the Securities Exchange Act of 1934, and the Internal Revenue Code of
1986, all as amended, and any laws, rules and regulations issued thereunder.
The Bank shall maintain and preserve for the periods prescribed
such records relating to the services to be performed by the Bank under this
Agreement as are required pursuant to the Investment Company Act. All such
records shall at all times remain the property of the Trust, shall be readily
accessible during normal business hours, and shall be promptly surrendered
upon the termination of the Agreement or otherwise on written request.
Records shall be surrendered in usable machine-readable form.
11. STATUS OF THE BANK
The services of the Bank to the Trust are not to be deemed
exclusive, and the Bank shall be free to render similar services to others.
The Bank shall be deemed to be an independent contractor and shall, unless
otherwise expressly provided herein or authorized by the Trust from time to
time, have no authority to act or represent the Trust in any way or otherwise
be deemed an agent of the Trust.
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12. PRINTED MATTER
Neither party shall publish or circulate any printed matter which
contains any reference to the other party without such party's prior written
approval. The Trust may circulate such printed matter as refers in accurate
terms to the Bank's appointment hereunder provided that the Bank is given a
copy of such material prior to its first use.
13. TERM, AMENDMENT AND TERMINATION
This Agreement may be modified or amended from time to time by
mutual agreement between the parties hereto. The Agreement shall remain in
effect for a period of one year from the date the Trust first accepts money
for investment, and shall automatically continue in effect thereafter with
respect to the Trust unless terminated by a party at the end of such period
or thereafter on ninety (90) days' prior written notice. Upon termination of
this Agreement, the Trust shall pay to the Bank such compensation as may be
due under the terms hereof as of the date of such termination including
reasonable out-of-pocket expenses associated with such termination.
14. NOTICES
Any notice or other communication authorized or required by this
Agreement to be given to any party mentioned herein shall be sufficiently
given if addressed to such party and mailed postage prepaid or delivered to
its principal office.
15. NON-ASSIGNABILITY
This Agreement shall not be assigned by any of the parties hereto
without the prior consent in writing of the other parties.
16. SUCCESSORS
This Agreement shall be binding on and shall inure to the benefit
of the Trust and the Bank and their respective successors.
17. ENTIRE AGREEMENT
This Agreement (and any Compliance Manual and Trust Profile as may
be prepared by the Bank) contains the entire understanding between the
parties hereto and supersedes all previous representations, warranties or
commitments regarding the services to be performed hereunder whether oral or
in writing. This Agreement cannot be modified or terminated except in
accordance with its terms or by a writing signed by all parties.
18. LIMITATIONS OF LIABILITY OF TRUSTEES
A copy of the Declaration of Trust of the Trust is on file with the
Secretary of the Commonwealth of Massachusetts, and notice is hereby given
that this instrument is executed on
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behalf of the Trustees of the Trust as trustees and not individually, and
that the obligations of this instrument are not binding upon any of the
Trustees individually.
19. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
THE VALIANT FUND
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
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Title: Vice President
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STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
--------------------
Title: Executive Vice President
--------------------
INTEGRITY MANAGEMENT & RESEARCH, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------
Name: Xxxxx Xxxxxxxxxx
--------------------
Title: Vice President
--------------------
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SCHEDULE A
TO
ADMINISTRATION AGREEMENT
Services Provided by the Bank:
(a) Oversee the determination and publication of the Trust's net
asset value in accordance with the Trust's policy as adopted from
time to time by the Board of Trustees;
(b) Oversee the maintenance by State Street Bank and Trust Company of
certain books and records of the Trust as required under Rule
31a-1(b)(4) of the Investment Company Act of 1940;
(c) Prepare the Trust's federal, state and local income tax returns
for review by the Trust's independent accountants and filing by
the Trust treasurer;
(d) Review the appropriateness of and arrange for payment of the
Trust's expenses;
(e) Prepare for review and approval by officers of the Trust
financial information for the Trust's semi-annual and annual
reports, proxy statements and other communications with
shareholders required or otherwise to be sent to Trust
shareholders, and arrange for the printing and dissemination of
such reports and communications to shareholders;
(f) Prepare for review by an officer of and counsel for the Trust the
Trust's periodic financial report required to be filed with the
Securities and Exchange Commission ("SEC") on Form N-SAR and
Form N-1A and such other reports, forms or filings, as may be
mutually agreed upon;
(g) Prepare reports relating to the business and affairs of the Trust
as may be mutually agreed upon and not otherwise appropriately
prepared by the Trust's investment adviser, custodian, counsel or
auditors;
(h) Make such reports and recommendations to the Board concerning the
performance of the independent accountants as the Board may
reasonably request or deems appropriate;
(i) Make such reports and recommendations to the Board concerning the
performance and fees of the Trust's custodian and transfer and
dividend disbursing agent as the Board may reasonably request or
deems appropriate;
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(j) Oversee and review calculations of fees paid to the Manager, the
investment adviser, the custodian, and the transfer agent;
(k) Consult with the Trust's officers, independent accountants, legal
counsel, custodian and transfer and dividend disbursing agent in
establishing the accounting policies of the Trust;
(l) Review implementation of any dividend reinvestment programs
authorized by the Board of Trustees;
(m) Respond to or refer to the Trust's officers or transfer agent,
shareholder inquiries relating to the Trust.
(n) Provide periodic testing of portfolios to assist the Trust's
advisor in complying with Internal Revenue Code mandatory
qualification requirements, the requirements of the Investment
Company Act and Trust prospectus limitations as may be mutually
agreed upon.
Certain details of the scope of the Bank services hereunder may be
documented in the Compliance Manual and Trust Profile as amended from time to
time.
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SCHEDULE B
REGISTRATION OF TRUST SHARES
WITH STATE SECURITIES ADMINISTRATORS
The Bank will prepare required documentation and register Trust shares in
accordance with the securities laws of each state or jurisdiction in which
Trust shares are offered or sold as determined by the Trust. The
registration services shall consist of the following:
1. Filing of Trust initial registration statements and amendments
thereto (N-1A);
2. Amending state registration statements as required;
3. Filing on behalf of the Trust, Trust sales reports and
advertising literature where applicable;
4. Payment at the expense of the Trust of all Trust state
registration and filing fees;
5. Filing post effective amendments to the prospectuses and
statements of additional information (SAI);
6. Filing of annual reports, supplements and stickers, and proxy
statements; and
7. The performance of additional services which the Bank and the
Manager may agree upon in writing.
Unless otherwise noted in writing by the Bank, registration services by the
Bank shall not include determining the availability of institutional
exemptions under a state's blue sky law. Any such determination shall be
made by the Manager or its legal counsel. In connection with the services
described herein, the Manager shall cause the Trust to issue in favor of the
Bank a power of attorney to register Trust shares on behalf of the Trust,
which power of attorney shall be substantially in the form of Exhibit I
attached hereto.
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EXHIBIT I
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, as of September 1, 1994 that The Valiant Fund
(the "Trust") makes, constitutes, and appoints STATE STREET BANK AND TRUST
COMPANY (the "Bank") with principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx its lawful attorney-in-fact for it to do as if it were itself
acting, the following:
1. REGISTRATION OF TRUST SHARES. The power to register shares of the Trust
in each jurisdiction in which Trust shares are offered or sold and in
connection therewith the power to prepare, execute, and deliver and file
any and all Trust applications, including without limitation, applications
to register shares, to register agents, consents, including consents to
service of process, reports, including without limitation, all periodic
reports, claims for exemption, or other documents and instruments now or
hereafter required or appropriate in the judgment of the Bank in
connection with the registration of Trust shares.
2. CHECKS. The power to draw, endorse, and deposit checks in the name of the
Trust in connection with the registration of Trust shares with state
securities administrators.
The execution of this limited power of attorney shall be deemed coupled with
an interest and shall be revocable only upon receipt by Bank of such
termination of authority. Nothing herein shall be construed to constitute
the appointment of the Bank as or otherwise authorize the Bank to act as an
officer, director or employee of the Trust.
IN WITNESS WHEREOF, the Trust has caused this Agreement to be executed in its
name and on its behalf by and through its duly authorized officer, as of the
date first written above.
[ ]
By:_______________________________
Name:_____________________________
Title:____________________________
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