EXHIBIT 9
DRAFT
ADMINISTRATION AGREEMENT
Agreement dated as of , 1993 between State
Street Bank and Trust Company, a Massachusetts trust company
(the "Bank") and SBI Fund, Inc. (the "Fund").
WHEREAS, the Bank provides certain administrative and
other services to investment companies and others; and
WHEREAS, the Fund desires to retain the Bank to ren-
der certain administrative and other services with respect to
the Fund and the Bank is willing to render such services on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Appointment of Bank
The Fund hereby appoints the Bank to act as adminis-
trator with respect to the Fund for purposes of providing cer-
tain 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 per-
form such services. In connection with such appointment, the
Fund will deliver to the Bank copies of each of the following
documents and will deliver to it all future amendments and sup-
plements, if any:
A. Certified copies of the Agreement and Articles
of Incorporation as presently in effect and as amended from
time to time;
B. The Fund's most recent registration statement on
Form N-1A as filed with, and declared effective by, the U.S.
Securities and Exchange Commission, and ail amendments thereto;
C. Each resolution of the Board of Directors of the
Fund authorizing the original issue of its shares;
D. Certified copies of the resolutions of the
Fund's Board of Directors authorizing: (1) this Agreement, (2)
certain officers and trustees of the Fund to give instructions
to the Bank pursuant to this Agreement and (3) certain officers
and employees of the Fund to sign checks and pay expenses on
behalf of the Fund, respectively;
E. A copy of the Management Agreement;
F. A copy of the Investment Advisor Agreement
between the Fund and the Advisor;
G A copy of the Custodian Agreement between the
Fund and its custodian;
H. A copy of the Transfer Agency and Registrar
Agreement between the Fund and its transfer agent; and
I. Such other certificates, documents or opinions
which the Bank may, in its reasonable discretion, deem neces-
sary or appropriate in the proper performance of its duties.
2. Representation and Warranties of the Bank
The Bank represents and warrants to the Fund that:
A. It is a Massachusetts trust company, duly orga-
nized and existing in good standing under the laws of the Com-
monwealth 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 Fund certifies to the Bank that, as of the close
of business on the date of this Agreement, the Fund is autho-
rized 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 Fund
in accordance with procedures established from time to time
between the Fund and the Bank.
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It is the responsibility of the Fund and/or its legal
counsel and accountants no 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
Fund agree that all services provided hereunder are subject to
review and correction by the Fund'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 Fund
The Fund shall provide for any of its own:
A. Organizational expenses;
B. Services of an independent accountant;
C. Services of outside legal and tax counsel (in-
cluding such counsel's review of the Fund's registration state-
ment, 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 Fund directly
from parties other than the Bank;
E. Trading operations and brokerage fees, commis-
sions and transfer taxes in connection with the purchase and
sale of securities for the Fund;
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 Direc-
tors' meetings, including fees and expenses of Directors;
J. The salary and expenses of any officer, director
or employee of the Fund;
K. Costs incidental to the preparation, printing
and distribution of the Fund's registration statements and any
amendments thereto, and shareholder reports;
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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 Fund'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
N. Fidelity bond and directors' and officers'
liability insurance.
6. Fees
The Bank shall receive from the Fund such compensa-
tion for the Bank's services provided pursuant to this Agree-
ment 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 the Fund 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 Fund for instructions and may consult with legal
counsel for the Fund, or its own legal counsel, the outside
counsel for the Fund or the auditors for the Fund at the
expense of the Fund, with respect to any matter arising in con-
nection with the services to be performed by the Bank under
this Agreement. The Bank 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 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 Fund.
8. Limitation of Liability and Indemnification
a. The Bank shall be responsible for the perfor-
xxxxx 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
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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 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 rul-
ing.
b. The Fund shall indemnify and hold the Bank harm-
less from all loss, cost, damage and expense, including reason-
able 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 act-
ing upon any instructions reasonably believed by it to have
been executed by a duly authorized officer of the Manager or of
the Fund, 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 miscon-
duct.
c. 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 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 Fund shall have specifically authorized the retain-
ing of such counsel.
d. The indemnification contained herein shall sur-
vive 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 Fund
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or its shareholders or shareholder accounts and will not dis-
close the same to any person except at the request or with the
written consent of the Fund.
10. Compliance with Governmental Rules and Regulations
The Fund 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 per-
formed by the Bank under this Agreement as are required pur-
suant to the Investment Company Act. All such records 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. Records shall be surrendered in usable
machine-readable form.
11. Status of the Bank
The services of the Bank to the Fund 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 indepen-
dent 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. 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 Fund any 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
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the date the Fund first accepts money for investment, and shall
automatically continue in effect thereafter with respect to the
Fund unless terminated by a party at the end of such period or
thereafter on sixty (60) days' prior written notice. Upon ter-
mination of this Agreement, the Fund 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 Fund and the Bank and their respective suc-
cessors.
17. Entire Agreement
This Agreement (and any Compliance Manual and Fund
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 writ-
ing. This Agreement cannot be modified or terminated except in
accordance with its terms or by a writing signed by all par-
ties.
18. Governing Law
This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of
the Commonwealth of Massachusetts.
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SBI FUND, INC.
By:
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
Name:
Title:
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SCHEDULE A
TO
ADMINISTRATION AGREEMENT
Fund Authorized Shares
Pool A
Pool B
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SCHEDULE B
TO
ADMINISTRATION AGREEMENT
Services Provided by the Bank:
(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 of
Directors;
(b) Oversee the maintenance by State Street Bank and
Trust Company of certain books and records of the
Fund as required under Rule 31a-1(b)(4) of the
Investment Company Act of 1940;
(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 treasurer;
(d) Review the appropriateness of 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 com-
munications with shareholders required or otherwise
to be sent to Fund shareholders, and arrange for the
printing and dissemination of such reports and com-
munications to shareholders;
(f) Prepare for review by an officer of and counsel for
the Fund the Fund'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 mutu-
ally agreed upon;
(g) Prepare reports relating to the business and affairs
of the Fund as may be mutually agreed upon and not
otherwise appropriately prepared by the Fund'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;
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(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
as the Board may reasonably request or deems appro-
priate;
(j) Oversee and review calculations of fees paid to the
Manager, the investment adviser, the custodian, and
the transfer agent;
(k) Consult with the Fund's officers, independent
accountants, legal counsel, custodian and transfer
and dividend disbursing agent in establishing the
accounting policies of the Fund;
(l) Review implementation of any dividend reinvestment
programs authorized by the Board of Directors;
(m) Respond to or refer to the Fund's officers or trans-
fer agent, shareholder inquiries relating to the
Fund.
(n) Provide periodic testing of portfolios to assist the
Fund's advisor in complying with Internal Revenue
Code mandatory qualification requirements, the
requirements of the Investment Company Act and Fund
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 Fund
Profile as amended from time to time.
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SCHEDULE B-2
REGISTRATION OF Fund SHARES
WITH STATE SECURITIES ADMINISTRATORS
The Bank will prepare required documentation and register Fund
shares in accordance with the securities laws of each state or
jurisdiction in which Fund shares are offered or sold as deter-
mined by the Fund. The registration services shall consist of
the following:
1. Filing of Fund initial registration statements
and amendments thereto (N-1A);
2. Amending state registration statements as
required;
3. Filing on behalf of the Fund, Fund sales reports
and advertising literature where applicable;
4. Payment at the expense of the Fund of all Fund
state registration and filing fees;
5. Filing post effective amendments to the prospec-
tuses and statements of additional information
(SAI);
6. Filing of annual reports, supplements and stick-
ers, 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 avail-
ability 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 Fund to issue in favor of
the Bank a power of attorney to register Fund shares on behalf
of the Fund, 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 , 1993 that
FLORIDA A & M SBI FUND (the "Fund") 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 Fund SHARES. The power to register shares
of the Fund in each jurisdiction in which Fund shares are
offered or sold and in connection therewith the power to
prepare, execute, and deliver and file any and all Fund
applications, including without limitation, applications
to register shares, to register agents, consents, includ-
ing consents to service of process, reports, including
without limitation, all periodic reports, claims for
exemption, or other documents and instruments now or here-
after required or appropriate in the judgement of the Bank
in connection with the registration of Fund shares.
2. CHECKS. The power to draw, endorse, and deposit checks in
the name of the Fund in connection with the registration
of Fund 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 Fund.
IN WITNESS WHEREOF, the Fund 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.
SBI FUND, INC.
By:
Name:
Title:
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