EXHIBIT 9(b)
FORM OF
ADMINISTRATION AGREEMENT
Agreement dated as of _______, 199_ by and between State Street Bank and
Trust Company, a Massachusetts trust company (the "Administrator"), and
Monument Series Fund, Inc. (the "Fund").
WHEREAS, the Fund is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund desires to retain the Administrator to furnish certain
administrative services to the Fund, and the Administrator is willing to
furnish such services, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF ADMINISTRATOR
The Fund hereby appoints the Administrator to act as administrator with
respect to the Fund for purposes of providing certain administrative services
for the period and on the terms set forth in this Agreement. The Administrator
accepts such appointment and agrees to render the services stated herein.
The Fund will initially consist of the portfolio(s) and/or class(es) of
shares (each an "Investment Fund") listed in Schedule A to this Agreement. In
the event that the Fund establishes one or more additional Investment Funds
with respect to which it wishes to retain the Administrator to act as
administrator hereunder, the Fund shall notify the Administrator in writing.
Upon written acceptance by the Administrator, such Investment Fund shall
become subject to the provisions of this Agreement to the same extent as the
existing Investment Funds, except to the extent that such provisions
(including those relating to the compensation and expenses payable by the Fund
and its Investment Funds) may be modified with respect to each additional
Investment Fund in writing by the Fund and the Administrator at the time of
the addition of the Investment Fund.
2. DELIVERY OF DOCUMENTS
The Fund will promptly deliver to the Administrator copies of each of the
following documents and all future amendments and supplements, if any:
a. The Fund's charter document and by-laws;
b. The Fund's currently effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and the 1940
Act and the Fund's Prospectus(es) and Statement(s) of Additional
Information relating to all Investment Funds and all amendments and
supplements thereto as in effect from time to time;
c. Certified copies of the resolutions of the Board of Directors of the
Fund (the "Board") authorizing (1) the Fund to enter into this
Agreement and (2) certain individuals on behalf of the Fund to (a)
give instructions to the Administrator pursuant to this Agreement
and (b) sign checks and pay expenses;
d. A copy of the investment advisory agreement between the Fund and its
investment adviser; and
e. Such other certificates, documents or opinions which the
Administrator may, in its reasonable discretion, deem necessary or
appropriate in the proper performance of its duties.
3. REPRESENTATION AND WARRANTIES OF THE ADMINISTRATOR
The Administrator represents and warrants to the Fund that:
a. It is a Massachusetts trust company, duly organized, existing and in
good standing under the laws of The Commonwealth of Massachusetts;
b. It has the corporate power and authority 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;
d. No legal or administrative proceedings have been instituted or
threatened which would impair the Administrator's ability to perform
its duties and obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a material breach
or be in material conflict with any other agreement or obligation of
the Administrator or any law or regulation applicable to it.
4. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Administrator that:
a. It is a corporation duly organized and existing and in good standing
under the laws of Maryland;
b. It has the corporate power and authority under applicable laws and
by its charter and by-laws to enter into and perform this Agreement;
c. All requisite proceedings have been taken to authorize it to enter
into and perform this Agreement;
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d. It is an investment company properly registered under the 1940 Act;
e. A registration statement under the 1933 Act and the 1940 Act has
been filed and will be effective and remain effective during the
term of this Agreement. The Fund also warrants to the Administrator
that all necessary filings under the securities laws of the states
in which the Fund offers or sells its shares will have been made and
will be current during the term of this Agreement;
f. No legal or administrative proceedings have been instituted or
threatened which would impair the Fund's ability to perform its
duties and obligations under this Agreement;
g. Its entrance into this Agreement shall not cause a material breach
or be in material conflict with any other agreement or obligation of
the Fund or any law or regulation applicable to it; and
h. As of the close of business on the date of this Agreement, the Fund
is authorized to issue shares of capital stock, and it will
initially offer shares, in the authorized amounts as set forth in
Schedule A to this Agreement.
5. ADMINISTRATION SERVICES
The Administrator shall provide the following services, in each case,
subject to the control, supervision and direction of the Fund and the review
and comment by the Fund's auditors and legal counsel and in accordance with
procedures which may be established from time to time between the Fund and the
Administrator:
a. Oversee the determination and publication of the Fund's net asset
value in accordance with the Fund's policy as adopted from time to
time by the Board;
b. Oversee the maintenance by the Fund's custodian of certain books and
records of the Fund as required under Rule 31a-1(b) of the 1940 Act;
c. Prepare the Fund's federal, state and local income tax returns for
review by the Fund's independent accountants and filing by the
Fund's treasurer;
d. Review calculation, submit for approval by officers of the Fund and
arrange for payment of the Fund's expenses;
e. Prepare for review and approval by officers of the Fund financial
information for the Fund's semi-annual and annual reports, proxy
statements and other
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communications required or otherwise to be sent to Fund
shareholders, and arrange for the printing and dissemination of such
reports and communications to shareholders;
f. Prepare for review by an officer of and legal counsel for the Fund
the Fund's periodic financial reports required to be filed with the
Securities and Exchange Commission ("SEC") on Form N-SAR and
financial information required by 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 Fund as
may be mutually agreed upon and not otherwise prepared by the Fund's
investment adviser, custodian, legal counsel or independent
accountants;
h. Make such reports and recommendations to the Board concerning the
performance of the independent accountants as the Board may
reasonably request;
i. Make such reports and recommendations to the Board concerning the
performance and fees of the Fund's custodian and transfer and
dividend disbursing agent ("Transfer Agent") as the Board may
reasonably request or deems appropriate;
j. Oversee and review calculations of fees paid to the Fund's
investment adviser, custodian and Transfer Agent;
k. Consult with the Fund's officers, independent accountants, legal
counsel, custodian and Transfer Agent in establishing the accounting
policies of the Fund;
l. Review implementation of any dividend reinvestment programs
authorized by the Board;
m. Respond to, or refer to the Fund's officers or Transfer Agent,
shareholder inquiries relating to the Fund;
n. Provide periodic testing of portfolios to assist the Fund's
investment adviser in complying with Internal Revenue Code mandatory
qualification requirements, the requirements of the 1940 Act and
Fund prospectus limitations as may be mutually agreed upon;
[Items o through aa to be inserted only if Legal Administration Services are
to be provided.]
o. Review and provide assistance on shareholder communications;
p. Maintain general corporate calendar;
q. Maintain copies of the Fund's charter and by-laws;
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r. File annual and semi-annual shareholder reports with the appropriate
regulatory agencies; review text of "President's letters" to
shareholders and "Management's Discussion of Fund Performance"
(which shall also be subject to review by the Fund's legal counsel);
s. Organize, attend and prepare minutes of shareholder meetings;
t. Provide consultation on regulatory matters relating to portfolio
management, Fund operations and any potential changes in the Fund's
investment policies, operations or structure; act as liaison to
legal counsel to the Fund and, where applicable, to legal counsel to
the Fund's independent Board members;
u. Maintain continuing awareness of significant emerging regulatory and
legislative developments which may affect the Fund, update the Board
and the investment adviser on those developments and provide related
planning assistance where requested or appropriate;
v. Develop or assist in developing guidelines and procedures to improve
overall compliance by the Fund and its various agents;
w. Counsel and assist the Fund in the handling of routine regulatory
examinations and work closely with the Fund's legal counsel in
response to any non-routine regulatory matters;
Subject to review and comment by the Fund's legal counsel:
x. Prepare and file with the SEC amendments to the Fund's registration
statement, including updating the Prospectus and Statement of
Additional Information, where applicable;
y. Prepare and file with the SEC proxy statements; provide consultation
on proxy solicitation matters;
z. Prepare agenda and background materials for Board meetings, make
presentations where appropriate, prepare minutes and follow-up on
matters raised at Board meetings; and
aa. Prepare and file with the SEC Rule 24f-2 notices.
The Administrator shall provide the office facilities and the personnel
required by it to perform the services contemplated herein.
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6. FEES; EXPENSES; EXPENSE REIMBURSEMENT
The Administrator shall receive from the Fund such compensation for the
Administrator'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 and
initially set forth in Schedule B to this Agreement. The fees are accrued
daily and billed monthly and shall be due and payable upon receipt of the
invoice. Upon the termination of this Agreement before the end of any month,
the fee for the part of the month before such termination shall be prorated
according to the proportion which such part bears to the full monthly period
and shall be payable upon the date of termination of this Agreement. In
addition, the Fund shall reimburse the Administrator for its out-of-pocket
costs incurred in connection with this Agreement.
The Fund agrees promptly to reimburse the Administrator for any equipment
and supplies specially ordered by or for the Fund through the Administrator
and for any other expenses not contemplated by this Agreement that the
Administrator may incur on the Fund's behalf at the Fund's request or with the
Fund's consent.
The Fund will bear all expenses that are incurred in its operation and
not specifically assumed by the Administrator. Expenses to be borne by the
Fund, include, but are not limited to: organizational expenses; cost of
services of independent accountants and outside legal and tax counsel
(including such counsel's review of the Fund's registration statement, proxy
materials, federal and state tax qualification as a regulated investment
company and other reports and materials prepared by the Administrator under
this Agreement); cost of any services contracted for by the Fund directly from
parties other than the Administrator; cost of trading operations and brokerage
fees, commissions and transfer taxes in connection with the purchase and sale
of securities for the Fund; investment advisory fees; taxes, insurance
premiums and other fees and expenses applicable to its operation; costs
incidental to any meetings of shareholders including, but not limited to,
legal and accounting fees, proxy filing fees and the costs of preparation,
printing and mailing of any proxy materials; costs incidental to Board
meetings, including fees and expenses of Board members; the salary and
expenses of any officer, director\trustee or employee of the Fund; costs
incidental to the preparation, printing and distribution of the Fund's
registration statements and any amendments thereto and shareholder reports;
cost of typesetting and printing of prospectuses; cost of preparation and
filing of the Fund's tax returns, Form N-1A or N-2 and Form N-SAR, and all
notices, registrations and amendments associated with applicable federal and
state tax and securities laws; all applicable registration fees and filing
fees required under federal and state securities laws; fidelity bond and
directors' and officers' liability insurance; and cost of independent pricing
services used in computing the Fund's net asset value.
The Administrator is authorized to and may employ or associate with such
person or persons as the Administrator may deem desirable to assist it in
performing its duties under this Agreement; provided, however, that the
compensation of such person or persons shall be paid by the Administrator and
that the Administrator shall be as fully responsible to the Fund for the acts
and omissions of any such person or persons as it is for its own acts and
omissions.
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7. INSTRUCTIONS AND ADVICE
At any time, the Administrator may apply to any officer of the Fund for
instructions and may consult with its own legal counsel or outside counsel for
the Fund or the independent accountants for the Fund at the expense of the
Fund, with respect to any matter arising in connection with the services to be
performed by the Administrator under this Agreement. The Administrator shall
not be liable, and shall be indemnified by the Fund, for any action taken or
omitted by it in good faith in reliance upon any such instructions or advice
or upon any paper or document believed by it 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 person until receipt of written
notice thereof from the Fund. Nothing in this paragraph shall be construed as
imposing upon the Administrator any obligation to seek such instructions or
advice, or to act in accordance with such advice when received.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
The Administrator shall be responsible for the performance of only such
duties as are set forth in this Agreement and, except as otherwise provided
under Section 6, shall have no responsibility for the actions or activities of
any other party, including other service providers. The Administrator shall
have no liability for any error of judgement or mistake of law or 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 Administrator, its officers or employees. The
Administrator shall not be liable for any special, indirect, incidental, or
consequential damages of any kind whatsoever (including, without limitation,
attorneys' fees) under any provision of this Agreement or for any such damages
arising out of any act or failure to act hereunder. In any event, the
Administrator's liability under this Agreement 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 Fund including, but not
limited to, any liability relating to qualification of the Fund as a regulated
investment company or any liability relating to the Fund's compliance with any
federal or state tax or securities statute, regulation or ruling.
The Administrator shall not 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 control, including
without limitation, work stoppage, power or other mechanical failure, computer
virus, natural disaster, governmental action or communication disruption, nor
shall any such failure or delay give the Fund the right to terminate this
Agreement.
The Fund shall indemnify and hold the Administrator harmless from all
loss, cost, damage and expense, including reasonable fees and expenses for
counsel, incurred by the Administrator resulting from any claim, demand,
action or suit in connection with the Administrator'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 duly authorized by the Fund, provided that this
indemnification shall not apply to actions or omissions of the Administrator,
its officers or employees in cases of its or their own gross negligence or
willful misconduct.
The Fund 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 Fund elects to assume the defense of any such suit and retain
counsel, the
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Administrator 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 (i) the Fund shall have specifically
authorized the retaining of such counsel or (ii) the Administrator shall have
determined in good faith that the retention of such counsel is required as a
result of a conflict of interest.
The indemnification contained herein shall survive the termination of
this Agreement.
9. CONFIDENTIALITY
The Administrator agrees that, except as otherwise required by law or in
connection with any required disclosure to a banking or other regulatory
authority, it will keep confidential all records and information in its
possession relating to the Fund 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 Fund.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS
The Fund assumes full responsibility for complying with all securities,
tax, commodities and other laws, rules and regulations applicable to it.
In compliance with the requirements of Rule 31a-3 under the 1940 Act, the
Administrator agrees that all records which it maintains for the Fund shall at
all times remain the property of the Fund, shall be readily accessible during
normal business hours, and shall be promptly surrendered upon the termination
of the Agreement or otherwise on written request. The Administrator further
agrees that all records which it maintains for the Fund pursuant to Rule 31a-1
under the 1940 Act will be preserved for the periods prescribed by Rule 31a-2
under the 1940 Act unless any such records are earlier surrendered as provided
above. Records shall be surrendered in usable machine-readable form.
11. SERVICES NOT EXCLUSIVE
The services of the Administrator to the Fund are not to be deemed
exclusive, and the Administrator shall be free to render similar services to
others. The Administrator shall be deemed to be an independent contractor and
shall, unless otherwise expressly provided herein or authorized by the Fund
from time to time, have no authority to act or represent the Fund in any way
or otherwise be deemed an agent of the Fund.
12. TERM, TERMINATION AND AMENDMENT
This Agreement shall become effective on . The Agreement shall remain in
effect for a period of from [the effective date\the date the Fund first
accepts money for investment], and shall automatically continue in effect
thereafter with respect to the Fund unless terminated in writing by either
party at the end of such period or thereafter on sixty (60) days' prior
written notice given by either party to the other party. Termination of this
Agreement with respect to any given Investment Fund shall in no way affect the
continued validity of this Agreement with respect to any other Investment
Fund. Upon termination of this Agreement, the Fund shall pay to the
Administrator such compensation and any reimbursable expenses as may be due
under the terms hereof as of the date of such termination,
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including reasonable out-of-pocket expenses associated with such termination.
This Agreement may be modified or amended from time to time by mutual written
agreement of the parties hereto.
13. NOTICES
Any notice or other communication authorized or required by this
Agreement to be given to either party shall be in writing and deemed to have
been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the following address (or such
other address as a party may specify by written notice to the other): if to
the Fund: ________________, Attn:________________, fax:________________; if to
the Administrator: State Street Bank and Trust Company, 0000 Xxxxxxxx Xxxxx,
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Xxxxxx Xxxxx Xxxxx, Vice President
and Counsel, fax: (000) 000-0000.
14. NON-ASSIGNABILITY
This Agreement shall not be assigned by either party hereto without the
prior consent in writing of the other party, except that the Administrator may
assign this Agreement to a successor of all or a substantial portion of its
business, or to a party controlling, controlled by or under common control
with the Administrator.
15. SUCCESSORS
This Agreement shall be binding on and shall inure to the benefit of the
Fund and the Administrator and their respective successors and permitted
assigns.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties
hereto with respect to the subject matter hereof and supersedes all previous
representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
17. WAIVER
The failure of a party to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver nor shall it
deprive such party of the right thereafter to insist upon strict adherence to
that term or any term of this Agreement. Any waiver must be in writing signed
by the waiving party.
18. SEVERABILITY
If any provision of this Agreement is invalid or unenforceable, the
balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any person or circumstance it shall nevertheless remain
applicable to all other persons and circumstances.
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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.
20. REPRODUCTION OF DOCUMENTS
This Contract and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties
hereto all/each agree that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding,
whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written
above.
MONUMENT SERIES FUND, INC.
By:_______________________
Name:_____________________
Title:____________________
STATE STREET BANK AND TRUST COMPANY
By:_______________________
Name:_____________________
Title:____________________
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ADMINISTRATION AGREEMENT
Monument Series Fund, Inc.
SCHEDULE A
LISTING OF INVESTMENT FUNDS AND AUTHORIZED SHARES
Investment Fund Authorized Shares
Washington Area Growth Fund
Washington Area Aggressive Growth Fund
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ADMINISTRATION AGREEMENT
Monument Series Fund, Inc.
SCHEDULE B
FEES AND EXPENSES
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