EXHIBIT (h)(5)
ADMINISTRATION AGREEMENT
AGREEMENT made as of June 1, 1999 by and between The DLB FUND GROUP, a
Massachusetts business trust (the "Trust"), and INVESTORS BANK & TRUST COMPANY,
a Massachusetts trust company (the "Bank").
WHEREAS, the Trust, a registered investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), consisting of the
separate portfolios listed on Appendix A hereto (which may be amended from time
to time); and
WHEREAS, the Trust desires to retain the Bank to render certain
administrative services to the Trust and the Bank is willing to render such
services.
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints the Bank to act as
Administrator of the Trust on the terms set forth in this Agreement. The Bank
accepts such appointment and agrees to render the services herein set forth for
the compensation herein provided.
2. Delivery of Documents. The Trust has furnished the Bank with copies
properly certified or authenticated of each of the following:
(a) Resolutions of the Trust's Board of Trustees authorizing
the appointment of the Bank to provide certain administrative services to the
Trust and approving this Agreement;
(b) The Trust's Agreement and Declaration of Trust dated
August 1, 1994 and all amendments thereto, a copy of which is on file in the
office of the Secretary of State of the Commonwealth of Massachusetts (the
"Articles");
(c) The Trust's by-laws and all amendments thereto (the
"By-Laws");
(d) The Trust's agreements with all service providers which
include any investment advisory agreements, sub-investment advisory agreements,
custody agreements, distribution agreements and transfer agency agreements
(collectively, the "Agreements");
(e) The Trust's most recent Registration Statement on Form
N-1A (the "Registration Statement") under the Securities Act of 1933 and under
the 1940 Act and all amendments thereto; and
(f) The Trust's most recent prospectus and statement of
additional information (the "Prospectus"); and
(g) Such other certificates, documents or opinions as may
mutually be deemed necessary or appropriate for the Bank in the proper
performance of its duties hereunder.
The Trust will immediately furnish the Bank with copies of all
amendments of or supplements to the foregoing. Furthermore, the Trust will
notify the Bank as soon as possible of any matter which may materially affect
the performance by the Bank of its services under this Agreement.
3. Duties of Administrator. Subject to the supervision and direction of
the Board of Trustees of the Trust, the Bank, as Administrator, will assist in
conducting various aspects of the Trust's administrative operations and
undertakes to perform the services described in Appendix C hereto. The Bank may,
from time to time, perform additional duties and functions which shall be set
forth in an
amendment to such Appendix C executed by both parties. At such time, the fee
schedule included in Appendix B hereto shall be appropriately amended.
In performing all services under this Agreement, the Bank
shall act in conformity with the Trust's Articles and By-Laws and the 1940 Act,
as the same may be amended from time to time, and the investment objectives,
investment policies and other practices and policies set forth in the Trust's
Registration Statement, as the same may be amended from time to time.
Notwithstanding any item discussed herein, the Bank has no discretion over the
Trust's assets or choice of investments and cannot be held liable for any
problem relating to such investments.
4. Duties of the Trust.
(a) The Trust is solely responsible (through its transfer
agent or otherwise) for (i) providing timely and accurate reports ("Daily Sales
Reports") which will enable the Bank as Administrator to monitor the total
number of shares sold in each state on a daily basis and (ii) identifying any
exempt transactions ("Exempt Transactions") which are to be excluded from the
Daily Sales Reports.
(b) The Trust agrees to make its legal counsel available to
the Bank for instruction with respect to any matter of law arising in connection
with the Bank's duties hereunder, and the Trust further agrees that the Bank
shall be entitled to rely on such instruction without further investigation on
the part of the Bank.
5. Fees and Expenses.
(a) For the services to be rendered and the facilities to be
furnished by the Bank, as provided for in this Agreement, the Trust will
compensate the Bank in accordance with the fee schedule attached as Appendix B
hereto. Such fees do not include out-of-pocket disbursements (as delineated on
the fee schedule or other expenses with the prior approval of the Trust's
management) of the Bank for which the Bank shall be entitled to xxxx the Trust
separately and for which the Trust shall reimburse the Bank.
(b) The Bank shall not be required to pay any expenses
incurred by the Trust.
6. Limitation of Liability.
(a) The Bank, its directors, officers, employees and agents
shall not be liable for any error of judgment or mistake of law or for any loss
suffered by the Trust in connection with the performance of its obligations and
duties under this Agreement, except a loss resulting from willful misfeasance,
bad faith or negligence in the performance of such obligations and duties, or by
reason of its reckless disregard thereof. The Trust will indemnify the Bank, its
directors, officers, employees and agents against and hold it and them harmless
from any and all losses, claims, damages, liabilities or expenses (including
legal fees and expenses) resulting from any claim, demand, action or suit (i)
arising out of the actions or omissions of the Trust, including, but not limited
to, inaccurate Daily Sales Reports and misidentification of Exempt Transactions;
(ii) arising out of the offer or sale of any securities of the Trust in
violation of (x) any requirement under the federal securities laws or
regulations, (y) any requirement under the securities laws or regulations of any
state, or (z) any stop order or other determination or ruling by any federal or
state agency with respect to the offer or sale of such securities; in each case
to the extent not resulting from the willful misfeasance, bad faith or
negligence of the Bank in the performance of such obligations and duties or by
reason of its reckless disregard thereof.
(b) The Bank may apply to the Trust at any time for
instructions and may consult counsel for the Trust, or its own counsel, and with
accountants and other experts with respect to any matter arising in connection
with its duties hereunder, and the Bank 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 opinion of
2
such counsel, accountants, or other experts. The Bank shall not be liable for
any act or omission taken or not taken in reliance upon any document,
certificate or instrument which it reasonably believes to be genuine and to be
signed or presented by the proper person or persons. The Bank shall not be held
to have notice of any change of authority of any officers, employees, or agents
of the Trust until receipt of written notice thereof has been received by the
Bank from the Trust.
(c) In the event the Bank is unable to perform, or is delayed
in performing, its obligations under the terms of this Agreement because of acts
of God, strikes, legal constraint, government actions, war, emergency
conditions, interruption of electrical power or other utilities, equipment or
transmission failure or damage reasonably beyond its control or other causes
reasonably beyond its control, the Bank shall not be liable to the Trust for any
damages resulting from such failure to perform, delay in performance, or
otherwise from such causes.
(d) Notwithstanding anything to the contrary in this
Agreement, in no event shall the Bank be liable for special, incidental or
consequential damages, even if advised of the possibility of such damages.
7. Termination of Agreement.
(a) The term of this Agreement shall be three years commencing
upon the date hereof (the "Initial Term"), unless earlier terminated as provided
herein. After the expiration of the Initial Term, the term of this Agreement
shall automatically renew for successive one-year terms (each a "Renewal Term")
unless notice of non-renewal is delivered by the non-renewing party to the other
party no later than ninety days prior to the expiration of the Initial Term or
any Renewal Term, as the case may be.
(i) Either party hereto may terminate this Agreement
prior to the expiration of the Initial Term or any Renewal Term in the event the
other party violates any material provision of this Agreement, provided that the
violating party does not cure such violation within ninety days of receipt of
written notice from the non-violating party of such violation.
(ii) This Agreement shall terminate upon (i) the
liquidation of the Trust or (ii) with respect any fund, the liquidation of that
fund.
(b) With respect to any termination, with the exception of a
termination by the Trust pursuant to paragraph 7(a)(i), during the Initial Term
of this Agreement, the Bank shall be paid by the Trust the difference between
the amount that would have been paid to the Bank had there been no special
twelve (12) month fee arrangements and what was actually paid to the Bank.
(b) If the Custodian Agreement or the Transfer Agency and
Service Agreement both dated July 19, 1995, as they are amended from time to
time, are terminated for any reason the Bank may terminate this Agreement upon
sixty days notice.
(c) At any time after the termination of this Agreement, the
Trust may, upon written request, have reasonable access to the records of the
Bank relating to its performance of its duties as Administrator.
8. Miscellaneous.
(a) Any notice or other instrument authorized or required by
this Agreement to be given in writing to the Trust or the Bank shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
3
To the Trust:
Xxxxx X. Xxxxxx and Company Incorporated
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000- 1300
Attention: Xxxx X. Xxxxxxxxxx, General Counsel
To the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Client Manager
With a copy to: Xxxx X. Xxxxx, General Counsel
(b) This Agreement shall extend to and shall be binding upon
the parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable without the written consent
of the other party.
(c) This Agreement shall be construed in accordance with the
laws of the Commonwealth of Massachusetts, without regard to its conflict of
laws provisions.
(d) This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original and which
collectively shall be deemed to constitute only one instrument.
(e) The captions of this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
9. Amendments. This Agreement constitutes the entire Agreement between
the parties and may not be altered or amended, except as by instrument in
writing, executed by both parties, and in the case of the Trust, such alteration
or amendment will be authorized and approved by its Board.
10. Confidentiality. All books, records, information and data
pertaining to the business of the other party which are exchanged or received
pursuant to the negotiation or the carrying out of this Agreement shall remain
confidential, and shall not be voluntarily disclosed to any other person, except
as may be required in the performance of duties hereunder or as otherwise
required by law.
11. Use of Name. The Trust shall not use the name of the Bank or any of
its affiliates in any prospectus, sales literature or other material relating to
the Trust in a manner not approved by the Bank prior thereto in writing;
provided however, that the approval of the Bank shall not be required for any
use of its name which merely refers in accurate and factual terms to its
appointment hereunder or which is required by the Securities and Exchange
Commission or any state securities authority or any other appropriate
regulatory, governmental or judicial authority; provided further, that in no
event shall such approval be unreasonably withheld or delayed.
12. Disclaimer of Liability. A copy of the Agreement and 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 behalf of the Board of Trustees of the Trust as Trustees and not
individually and that the obligations of this instrument are not binding upon
any of the Trustees or shareholders individually but are binding upon the assets
and property of the Trust; provided, however, that the Agreement and Declaration
of Trust of the Trust provides that the assets of a particular series of the
4
Trust shall under no circumstances be charges with liabilities attributable to
any other series of the Trust and that all persons extending credit to, or
contracting with or having any claim against a particular series of the Trust
shall look only to the assets of that particular series for payment of such
credit, contract or claim.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and delivered by their duly authorized officers as of the date
first written above.
THE DLB FUND GROUP
By:___________________________
Name:
Title:
INVESTORS BANK & TRUST COMPANY
By:___________________________
Name:
Title:
6
Appendices
----------
Appendix A........................................... Portfolios
Appendix B........................................... Fee Schedule
Appendix C........................................... Services
Appendix A
This Appendix A forms a part of the Administration Agreement dated as of June 1,
1999 (the "Agreement") between Investors Bank & Trust Company and The DLB Fund
Group.
Portfolios
----------
The DLB Fixed Income Fund
The DLB Global Small Capitalization Fund
The DLB Mid-Capitalization Fund
The DLB Value Fund
The DLB Disciplined Growth Fund
The DLB Growth Fund
The DLB Micro Capitalization Fund
THE DLB FUND GROUP
By:___________________________
Name:
Title:
INVESTORS BANK & TRUST COMPANY
By:___________________________
Name:
Title:
