ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT is made as of November 15,
1996 (the "Agreement"), by and between FIRST DATA INVESTOR
SERVICES GROUP, INC., a Massachusetts corporation ("FDISG"), and
KOBREN INSIGHT FUNDS, a Massachusetts business trust (the
"Company").
WHEREAS, the Company is registered as a diversified open-end
management investment company under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Company desires to retain FDISG to render
certain administrative services with respect to each investment
portfolio listed in Schedule A hereto, as the same may be amended
from time to time by the parties hereto (collectively, the
"Funds"), and FDISG is willing to render such services;
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties
hereto as follows:
1. Appointment. The Company hereby appoints FDISG to act
as Administrator of the Company on the terms set forth in this
Agreement. FDISG accepts such appointment and agrees to render
the services herein set forth for the compensation herein
provided. In the event that the Company decides to retain FDISG
to act as Administrator hereunder with respect to one or more
portfolios other than the Funds, the Company shall notify FDISG in
writing. If FDISG is willing to render such services, it shall
notify the Company in writing whereupon such portfolio shall
become a Fund hereunder.
2. Delivery of Documents. The Company has furnished
FDISG with copies properly certified or authenticated of each of
the following:
(a) Resolutions of the Company's Board of Trustees
authorizing the appointment of FDISG to provide certain
administrative services required by the Company for each Fund and
approving this Agreement;
(b) The Company's Declaration of Trust (the
"Declaration of Trust") filed with the Commonwealth of
Massachusetts and all amendments thereto;
(c) The Company's By-Laws and all amendments thereto
(the "By-Laws");
(d) The Investment Advisory Agreement between
Insight Management, Inc. (the "Adviser") and the Company dated as
of _______________ and all amendments thereto (the "Advisory
Agreement");
(e) The Custody Agreement between
____________________ (the "Custodian") and the Company dated as of
_______________ and all amendments thereto (the "Custody
Agreement");
(f) The Transfer Agency and Registrar Agreement
between First Data Investor Services Group, Inc. (the "Transfer
Agent") and the Company dated as of November 15, 1996 and all
amendments thereto;
(g) The Company's Registration Statement on Form N-
1A (the "Registration Statement") under the Securities Act of 1933
and under the 1940 Act (File Nos. ________ and ________), as
declared effective by the Securities and Exchange Commission
("SEC") on ______________, relating to shares of the Company's
Shares of Beneficial Interest, $.___ par value per share, and all
amendments thereto; and
(h) Each Fund's most recent prospectus and Statement
of Additional Information and all amendments and supplements
thereto (collectively, the "Prospectuses").
The Company will furnish FDISG from time to time with
copies, properly certified or authenticated, of all amendments of
or supplements to the foregoing. Furthermore, the Company will
provide FDISG with any other documents that FDISG may reasonably
request and will notify FDISG as soon as possible of any matter
materially affecting the performance of FDISG of its services
under this Agreement.
3. Duties as Administrator. Subject to the supervision
and direction of the Board of Trustees of the Company, FDISG, as
Administrator, will assist in supervising various aspects of the
Company's administrative operations and undertakes to perform the
following specific services:
(a) Maintaining office facilities (which may be in
the offices of FDISG or a corporate affiliate) and furnishing
corporate officers for the Company ;
(b) Performing the functions ordinarily performed by
a mutual fund groups internal legal department as described in
Schedule D to this Agreement, furnishing data processing services,
clerical services, and executive and administrative services and
standard stationery and office supplies in connection with the
foregoing;
(c) Accounting and bookkeeping services (including
maintenance of such accounts, books and records of the Company as
may be required by Section 31(a) of the 1940 Act and the rules
thereunder);
(d) Internal auditing;
(e) Performing all functions ordinarily performed by
the office of a corporate treasurer, and furnishing the services
and facilities ordinarily incident thereto, including calculating
the net asset value of the shares in conformity with the fund(s)
prospectus;
(f) Preparing reports to the Company's shareholders
of record and the SEC including, but not necessarily limited to,
Annual Reports and Semi-Annual Reports on Form N-SAR;
(g) Preparing and filing various applications,
registration statements, reports or other documents required by
federal, and state laws and regulations, other than those filed or
required to be filed by the Adviser or Transfer Agent;
(h) Preparing and filing the Company's tax returns;
(i) At the Adviser's request, monitoring and
developing compliance procedures for the Company which will
include, among other matters, monitoring compliance with each
Fund's investment objective, policies, restrictions, tax
requirements and applicable laws and regulations;
(j) Performing all functions ordinarily performed by
the office of a corporate secretary, and furnishing the services
and facilities incident thereto, including all functions
pertaining to matters organic to the organization, existence and
maintenance of the corporate franchise of the Company, including
preparation for, conduct of, and recording trustees' meetings and
shareholder meetings. Trustees' meetings in excess of five in any
calendar year and shareholder meetings in excess of one in any two
year period shall be for an additional reasonable charge as may be
agreed upon by the Administrator and FDISG;
(k) Performing "Blue Sky" compliance functions,
including maintaining notice filings, registrations or "Blue Chip"
exemptions (if available) in all U.S. jurisdictions requested by
the Company, monitoring sales of shares in all such jurisdictions
and filing such additional notice or applying for such additional
or amended registrations as may be reasonably anticipated to be
necessary to permit continuous sales of the shares of the Funds in
all such jurisdictions, filing sales literature and advertising
materials to the extent required, with such Blue Sky authorities,
and making and filing all other applications, reports, notices,
documents and exhibits in connection with the foregoing; and
(l) Furnishing all other services identified on
Schedule B annexed hereto and incorporated herein which are not
otherwise specifically set forth above.
(m) FDISG agrees to provide the services set forth
herein in accordance with the Performance Standards annexed hereto
as Exhibit 1 of Schedule D and incorporated herein (the
"Performance Standards"). Such Performance Standards may be
amended from time to time upon written agreement by the parties.
(n) The Company hereby instructs FDISG to rely upon
the underlying fund company, NASDAQ or third parties (the "Pricing
Source") for obtaining daily underlying fund valuations and
periodic dividend distributions. In the event the Pricing Source
incorrectly states the value of the underlying fund company or a
dividend, FDISG agrees to reprocess the price of the affected
Funds shares. The Company agrees to bear the cost of any such
reprocessing by FDISG.
In performing all services under this Agreement, FDISG: (a)
shall act in conformity with the Articles, the Prospectuses and
the instructions and directions of the Administrator, and will
conform to and comply with the requirements of the 1940 Act and
all other applicable federal or state laws and regulations; and
(b) will consult with legal counsel to the Fund, as necessary or
appropriate in light of FDISGs duty to perform customary internal
legal and corporate secretary functions. Furthermore, FDISG shall
not have or be required to have any authority to supervise the
investment or reinvestment of the securities or other properties
which comprise the assets of the Company or any of its Funds and
shall not provide any investment advisory services to the Company
or any of its Funds.
4. Compensation and Allocation of Expenses. FDISG shall
bear all expenses in connection with the performance of its
services under this Agreement, except as indicated below.
(a) FDISG will from time to time employ or associate
with itself such person or persons as FDISG may believe to be
particularly suited to assist it in performing services under this
Agreement. Such person or persons may be officers and employees
who are employed by both FDISG and the Company. The compensation
of such person or persons shall be paid by FDISG and no obligation
shall be incurred on behalf of the Company in such respect.
(b) FDISG shall not be required to pay any of the
following expenses incurred by the Company: membership dues in
the Investment Company Institute or any similar organization;
investment advisory expenses; costs of printing and mailing stock
certificates, prospectuses, reports and notices; interest on
borrowed money; brokerage commissions; stock exchange listing
fees; taxes and fees payable to Federal, state and other
governmental agencies; fees of Trustees of the Company who are not
affiliated with FDISG; outside auditing expenses; outside legal
expenses; or other expenses not specified in this Section 4 which
may be properly payable by the Company.
(c) The Company on behalf of each of the Funds will
compensate FDISG for the performance of its obligations hereunder
in accordance with the fees set forth in the written Fee Schedule
annexed hereto as Schedule B and incorporated herein. Schedule B
may be amended to add fee schedules for any additional Funds for
which FDISG has been retained as Administrator.
(d) The Company will compensate FDISG for its
services rendered pursuant to this Agreement in accordance with
the fees set forth above. Such fees do not include out-of-pocket
disbursements of FDISG for which FDISG shall be entitled to xxxx
separately. Out-of-pocket disbursements shall include, but shall
not be limited to, the items specified in Schedule C, annexed
hereto and incorporated herein, which schedule may be modified by
FDISG upon not less than thirty days' prior written notice to the
Company and the Special Projects outlined in Schedule D hereto.
(e) FDISG will xxxx the Company as soon as
practicable after the end of each calendar month, and said
xxxxxxxx will be detailed in accordance with the out-of-pocket
schedule. The Company will promptly pay to FDISG the amount of
such billing.
(f) The Company acknowledges that the fees that
FDISG charges the Company under this Agreement reflect the
allocation of risk between the parties, including the disclaimer
of warranties in Section 7 and the limitations on liability in
Section 5. Modifying the allocation of risk from what is stated
here would affect the fees that FDISG charges, and in
consideration of those fees, the Company agrees to the stated
allocation of risk.
5. Limitation of Liability.
(a) FDISG shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Company in
connection with the performance of its obligations and duties
under this Agreement, except a loss resulting from FDISG's willful
misfeasance, bad faith or gross negligence in the performance of
such obligations and duties, or by reason of its reckless
disregard thereof.
(b) Notwithstanding any provision in this Agreement to the
contrary, FDISG's cumulative liability (to the Company) for all
losses, claims, suits, controversies, breaches, or damages for any
cause whatsoever (including but not limited to those arising out
of or related to this Agreement) and regardless of the form of
action or legal theory shall not exceed the greater of (i)
$500,000 or (ii) the fees received by FDISG for services provided
under this Agreement during the twelve months immediately prior to
the date of such loss or damage. The Company understands the
limitation on FDISG's damages to be a reasonable allocation of
risk and the Company expressly consents with respect to such
allocation of risk.
(c) Neither party may assert any cause of action against
the other party under this Agreement that accrued more than two
(2) years prior to the filing of the suit (or commencement of
arbitration proceedings) alleging such cause of action.
(d) Each party shall have the duty to mitigate damages for
which the other party may become responsible.
(e) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL FDISG, ITS AFFILIATES OR ANY OF ITS OR
THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE
LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY,
PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER
EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
6. Indemnification.
(a) Each party (the "Indemnifying Party") shall
indemnify and hold the other party (the "Indemnified Party")
harmless from and against any and all claims, costs, expenses
(including reasonable attorneys' fees), losses, damages, charges,
payments and liabilities of any sort or kind which may be asserted
against Indemnified Party or for which Indemnified Party may be
held to be liable in connection with this Agreement or Indemnified
Party's performance hereunder (a "Claim"), unless such Claim
resulted from an intentional, reckless or grossly negligent act or
omission to act or bad faith by Indemnified Party in the
performance of its obligations hereunder.
(b) In any case in which the Indemnifying Party may
be asked to indemnify or hold Indemnified Party harmless,
Indemnified Party will notify the Indemnifying Party promptly
after identifying any situation which it believes presents or
appears likely to present a claim for indemnification against the
Indemnifying Party although the failure to do so shall not prevent
recovery by Indemnified Party and shall keep the Indemnifying
Party advised with respect to all developments concerning such
situation. The Indemnifying Party shall have the option to defend
Indemnified Party against any Claim which may be the subject of
this indemnification, and, in the event that the Indemnifying
Party so elects, such defense shall be conducted by counsel chosen
by the Indemnifying Party and satisfactory to Indemnified Party,
and thereupon the Indemnifying Party shall take over complete
defense of the Claim and Indemnified Party shall sustain no
further legal or other expenses in respect of such Claim.
Indemnified Party will not confess any Claim or make any
compromise in any case in which the Indemnifying Party will be
asked to provide indemnification, except with the Indemnifying
Party's prior written consent. The obligations of the parties
hereto under this Section 6 shall survive the termination of this
Agreement.
7. EXCLUSION OF WARRANTIES. THIS IS A SERVICE AGREEMENT.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, FDISG DISCLAIMS
ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE
TO THE FUND OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY
COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) OF ANY SERVICES OR
ANY GOODS PROVIDED INCIDENTAL TO SERVICES PROVIDED UNDER THIS
AGREEMENT. FDISG DISCLAIMS ANY WARRANTY OF TITLE OR NON-
INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT.
8. Termination of Agreement.
(a) This Agreement shall be effective on the date
first written above and shall continue for a period of five (5)
years (the "Initial Term"), except as otherwise provided herein.
(b) Upon the expiration of the Initial Term, this
Agreement shall automatically renew for successive terms of three
(3) years ("Renewal Terms") each, unless the Company or FDISG
provides written notice to the other of its intent not to renew.
Such notice must be received not less than ninety (90) days and
not more than one-hundred eighty (180) days prior to the
expiration of the Initial Term or the then current Renewal Term.
(c) Notwithstanding the forgoing, the Company shall
have the ability to terminate this Agreement (i) upon sixty (60)
days prior written notice to FDISG in the event that Company
should dissolve and discontinue to do business; or (ii) upon the
termination of the Transfer Agency and Services Agreement dated
November 15, 1996, 1996 between the Company and FDISG.
(d) In the event that FDISG has failed to meet a
specific performance standard category, as set forth in Exhibit 1
of Schedule D, in four months of any rolling six month period, the
Company may terminate this Agreement. The Company will provide
FDISG with sixty (60) days notice in writing if the Company
intends to exercise its option under this Section 8(d).
Notwithstanding the foregoing, the Companys right under this
Section 8(d), shall not become effective until ninety (90) days
after FDISG has begun providing services under this Agreement.
(e) In the event a termination notice is given by
the Company, all expenses associated with movement of records and
materials and conversion thereof will be borne by the Company.
(f) If a party hereto is guilty of a material
failure to perform its duties and obligations hereunder (a
"Defaulting Party") resulting in a material loss to the other
party, such other party (the "Non-Defaulting Party") may give
written notice thereof to the Defaulting Party, and if such
material breach shall not have been remedied within thirty (30)
days after such written notice is given, then the Non-Defaulting
Party may terminate this Agreement by giving thirty (30) days
written notice of such termination to the Defaulting Party. If
FDISG is the Non-Defaulting Party, its termination of this
Agreement shall not constitute a waiver of any other rights or
remedies of FDISG with respect to services performed prior to such
termination or rights of FDISG to be reimbursed for out-of-pocket
expenses. In all cases, termination by the Non-Defaulting Party
shall not constitute a waiver by the Non-Defaulting Party of any
other rights it might have under this Agreement or otherwise
against the Defaulting Party.
9. Modifications and Waivers. No change, termination,
modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such
writing shall be effective as against FDISG unless said writing is
executed by a Senior Vice President, Executive Vice President or
President of FDISG. A party's waiver of a breach of any term or
condition in the Agreement shall not be deemed a waiver of any
subsequent breach of the same or another term or condition.
10. No Presumption Against Drafter. FDISG and the Company
have jointly participated in the negotiation and drafting of this
Agreement. The Agreement shall be construed as if drafted jointly
by the Company and FDISG, and no presumptions arise favoring any
party by virtue of the authorship of any provision of this
Agreement.
11. Publicity. Neither FDISG nor the Company shall
release or publish news releases, public announcements,
advertising or other publicity relating to this Agreement or to
the transactions contemplated by it without prior review and
written approval of the other party; provided, however, that
either party may make such disclosures as are required by legal,
accounting or regulatory requirements after making reasonable
efforts in the circumstances to consult in advance with the other
party.
12. Severability. The parties intend every provision of
this Agreement to be severable. If a court of competent
jurisdiction determines that any term or provision is illegal or
invalid for any reason, the illegality or invalidity shall not
affect the validity of the remainder of this Agreement. In such
case, the parties shall in good faith modify or substitute such
provision consistent with the original intent of the parties.
Without limiting the generality of this paragraph, if a court
determines that any remedy stated in this Agreement has failed of
its essential purpose, then all other provisions of this
Agreement, including the limitations on liability and exclusion of
damages, shall remain fully effective.
13. Miscellaneous.
(a) Any notice or other instrument authorized or
required by this Agreement to be given in writing to the Company
or FDISG shall be sufficiently given if addressed to the 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. A written
notice or instrument may be in the form of a facsimile
transmission, electronic mail, telegram or telex; provided that it
is actually received by the addressee.
To the Company:
Kobren Insight Funds
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to:
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
To FDISG:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to FDISGs General Counsel
(b) This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and permitted assigns and is not intended to confer
upon any other person any rights or remedies hereunder. This
Agreement may not be assigned or otherwise transferred by either
party hereto, without the prior written consent of the other
party, which consent shall not be unreasonably withheld; provided,
however, that FDISG may, in its sole discretion, assign all its
right, title and interest in this Agreement to an affiliate,
parent or subsidiary. FDISG may, in its sole discretion, engage
subcontractors to perform any of the obligations contained in this
Agreement to be performed by FDISG, but such engagement will not
relieve FDISG of such obligations.
(c) The laws of the Commonwealth of Massachusetts,
excluding the laws on conflicts of laws, shall govern the
interpretation, validity, and enforcement of this Agreement. All
actions arising from or related to this Agreement shall be brought
in the state and federal courts sitting in the City of Boston, and
FDISG and the Company hereby submit themselves to the exclusive
jurisdiction of those courts.
(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.
(f) The Company and FDISG agree that the obligations
of the Company under the Agreement shall not be binding upon any
of the Trustees, shareholders, nominees, officers, employees or
agents, whether past, present or future, of the Company
individually, but are binding only upon the assets and property of
the Company, as provided in the Declaration of Trust. The
execution and delivery of this Agreement have been authorized by
the Trustees of the Company, and signed by an authorized officer
of the Company, acting as such, and neither such authorization by
such Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them or any
shareholder of the Company individually or to impose any liability
on any of them or any shareholder of the Company personally, but
shall bind only the assets and property of the Company as provided
in the Declaration of Trust. No series of the Company shall be
responsible for the obligations of any other series under this
Agreement.
14. Confidentiality.
(a) The parties agree that the Proprietary
Information (defined below) and the contents of this Agreement
(collectively "Confidential Information") are confidential
information of the parties and their respective licensers. The
Company and FDISG shall exercise reasonable care to safeguard the
confidentiality of the Confidential Information of the other. The
Company and FDISG may each use the Confidential Information only
to exercise its rights or perform its duties under this Agreement.
The Company and FDISG shall not duplicate, sell or disclose to
others the Confidential Information of the other, in whole or in
part, without the prior written permission of the other party. The
Company and FDISG may, however, disclose Confidential Information
to its employees who have a need to know the Confidential
Information to perform work for the other, provided that each
shall use reasonable efforts to ensure that the Confidential
Information is not duplicated or disclosed by its employees in
breach of this Agreement. The Company and FDISG may also disclose
the Confidential Information to regulatory or judicial
authorities, independent contractors, auditors and professional
advisors, provided they first agree in writing to be bound by the
confidentiality obligations substantially similar to this Section
14. Notwithstanding the previous sentence, in no event shall
either the Company or FDISG disclose the Confidential Information
to any competitor of the other without specific, prior written
consent.
(b) Proprietary Information means:
(i) any data or information that is completely
sensitive material, and not generally known to the public,
including, but not limited to, information about product plans,
marketing strategies, finance, operations, customer relationships,
customer profiles, sales estimates, business plans, and internal
performance results relating to the past, present or future
business activities of the Company or FDISG, their respective
subsidiaries and affiliated companies and the customers, clients
and suppliers of any of them;
(ii) any scientific or technical information,
design, process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its
confidentiality affords the Company or FDISG a competitive
advantage over its competitors; and
(iii) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software,
source code, object code, flow charts, databases, inventions,
know-how, show-how and trade secrets, whether or not patentable or
copyrightable.
(c) Confidential Information includes, without
limitation, all documents, inventions, substances, engineering and
laboratory notebooks, drawings, diagrams, specifications, bills of
material, equipment, prototypes and models, and any other tangible
manifestation of the foregoing of either party which now exist or
come into the control or possession of the other.
(d) The Company acknowledges that breach of the
restrictions on use, dissemination or disclosure of any
Confidential Information would result in immediate and irreparable
harm, and money damages would be inadequate to compensate FDISG
for that harm. FDISG shall be entitled to equitable relief, in
addition to all other available remedies, to redress any such
breach.
15. Force Majeure. No party shall be liable for any
default or delay in the performance of its obligations under this
Agreement if and to the extent such default or delay is caused,
directly or indirectly, by (i) fire, flood, elements of nature or
other acts of God; (ii) any outbreak or escalation of hostilities,
war, riots or civil disorders in any country, (iii) any act or
omission of the other party or any governmental authority; (iv)
any labor disputes (whether or not the employees' demands are
reasonable or within the party's power to satisfy); or (v)
nonperformance by a third party or any similar cause beyond the
reasonable control of such party, including without limitation,
failures or fluctuations in telecommunications or other equipment.
In any such event, the non-performing party shall be excused from
any further performance and observance of the obligations so
affected only for so long as such circumstances prevail and such
party continues to use commercially reasonable efforts to
recommence performance or observance as soon as practicable.
16. Entire Agreement. This Agreement, including all
Schedules hereto, constitutes the entire Agreement between the
parties with respect to the subject matter hereof and supersedes
all prior and contemporaneous proposals, agreements, contracts,
representations, and understandings, whether written or oral,
between the parties with respect to the subject matter hereof.
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.
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: XXXXXXX X. SILVER
Name: Xxxxxxx X. Silver
Title: Executive Vice President
KOBREN INSIGHT FUNDS
By: XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
SCHEDULE A
LIST OF FUNDS
Kobren Growth Fund
Kobren Moderate Growth Fund
Kobren Conservative Allocation Fund
SCHEDULE B
FEE SCHEDULE
For the services to be rendered, the facilities to be
furnished and the payments to be made by FDISG, as provided for in
this Agreement, the Company, on behalf of each Fund, will pay
FDISG on the first business day of each month a fee for the
previous month at the rates listed below. The fee for the period
from the the earlier of commencment of operations of a Fund or
December 15, 1996 to the end of such month shall be prorated
according to the proportion that such period bears to the full
monthly period. Upon any termination of this Agreement before the
end of any month, the fee for such part of a month shall be
prorated according to the proportion which such period bears to
the full monthly period and shall be payable upon the date of
termination of this Agreement.
Flat fee of $67,500 per Fund per annum, provided however,
the Company shall pay a minimum of $125,000 per annum regardless
of the number of Funds; First Data reserves the right to terminate
this agreement should the fund family consist of only 1 Fund.
FDISG shall be entitled to collect all out-of-pocket fees
described in Schedule C.
$1 per mutual fund quotation for prices manually retrieved
or a pro-rata fee will be assessed for prices retrieved from an
automated vendor feed.
FDISG agrees to waive the first $40,000 of fees FDISG is
entitled to receive under this Agreement during the first year of
this Agreement.
SCHEDULE C
OUT-OF-POCKET EXPENSES
Out-of-pocket expenses include, but are not limited to, the
following:
- Postage of Board meeting materials and other materials to
the Company's
Board members and service providers (including overnight or
other courier
services)
- Telecommunications charges (including FAX) with respect to
communications with the Company's directors, officers and
service
providers
- Duplicating charges with respect to filings with federal and
state authorities
and Board meeting materials
- Courier services
- Pricing services
- Forms and supplies for the preparation of Board meetings and
other
materials for the Company
- Vendor set-up charges for Blue Sky services
- Such other expenses as are agreed to by FDISG and the
Administrator
SCHEDULE D
Fund Accounting and Administrative Services
Routine Projects
o Daily, Weekly, and Monthly Reporting
o Portfolio and General Ledger Accounting
o Daily Pricing of all Securities
o Daily Valuation and NAV Calculation
o Comparison of NAV to market movement
o Review of price tolerance/fluctuation report
o Research items appearing on the price exception report
o Weekly cost monitoring along with market-to-market
valuations in accordance with Rule 2a7
o Preparation of monthly ex-dividend monitor
o Daily cash reconciliation with the custodian bank
o Daily updating of price and rate information to the Transfer
Agent/Insurance Agent
o Daily support and report delivery to Portfolio Management
o Daily calculation of fund advisor fees and waivers
o Daily calculation of distribution rates
o Daily maintenance of each fund's general ledger including
expense accruals
o Daily price notification to other vendors as required
o Calculation of 30-day adjusted SEC yields
o Preparation of month-end reconciliation package
o Monthly reconciliation of fund expense records
o Preparation of monthly pay down gain/loss summaries
o Preparation of all annual and semi-annual audit work papers
o Preparation and Printing of Financial Statements
o Providing Shareholder Tax Information to Transfer Agent
o Producing Drafts of IRS and State Tax Returns
o Treasury Services including:
Provide Officer for the fund
Expense Accrual Monitoring
Determination of Dividends
Prepare materials for review by the board, e.g., 2a-
7,10f-3, 17a-7, 17e-1, Rule 144a
Tax and Financial Counsel
o Monthly Compliance Testing including section 817H
Distribution and Legal, Regulatory and Board of Trustees Support
Routine Projects
o Provide 1940 Act Attorney to assist in organization
o Prepare agenda and background materials for legal approval
at Board Meetings; make
presentations where appropriate; prepare minutes; follow up
on issues
o Review and filing of Form N-SAR
o Review and filing of Annual and Semi-Annual Financial
Reports
o Assistance in Preparation of Fund Registration Statements
o Review of all Sales Material and Advertising
o Coordinate all aspects of the printing and mailing process
with outside printers for all
shareholder publications
o Support for all quarterly board meetings
o Preparation of proxy materials for one meeting per two year
period
o Annual update Post-Effective Amendment (PEA)
o Prospectus supplements as needed
o Consultations regarding legal issues as needed
o SEC audit report
o Arrange insurance and fidelity bond coverage
o Support for one special board meeting per year and consent
votes where needed
o One additional PEA (other than annual update)
o One exemptive order application
o Assist with marketing strategy and product development
Special Projects*
o Proxy material preparation for additional meetings beyond
one per two year period
o N-14 preparation (merger document)
o Additional PEAs beyond two per year
o Prospectus simplification
o Additional exemptive order applications beyond one per year
o Extraordinary non-recurring projects - e.g., arranging CDSC
financing programs
o Basic sales, mutual funds, and product training to branch
and sales representatives
*Charged on a project-by-project basis.
Exhibit 1
of
Schedule D
Performance Standards
(i) The Funds auditors recommend termination and demonstrate
fundamental control weakness at FDISG - cure period - 90 days;
(ii) The accuracy rate of reporting prices to the wire services
during any calendar quarter is below 98%, subject to FDISGs
ability to obtain timely and accurate prices/net asset values
of the underlying investments in the funds - cure period - 90
days.
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SHARED\TLEGAL\CONTRACT\ISG\ADM\INSIGHTS5.DOC
