ADMINISTRATION AGREEMENT
AGREEMENT dated as of May 29, 1998 by and between SAMCO Fund, Inc., a
Maryland corporation (the "Fund"), and Investors Capital Services, Inc. a
Delaware corporation ("Investors Capital").
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 offers shares of common stock, par value $.001 per share, which have been
registered under the Securities Act of 1933, as amended;
WHEREAS, Investors Capital is a service company which provides
management, administrative and other services to investment companies and other
entities; and
WHEREAS, the Fund desires to retain Investors Capital to render certain
management and administrative services, including supervision of certain third
party vendors to the Fund.
NOW, THEREFORE, in consideration of the above premises and of other
good and valuable consideration the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Appointment of Administrator
The Fund hereby appoints Investors Capital to act as administrator to
the Fund for the period and on the terms set forth in this Agreement. This
appointment applies to each existing series of the Fund, as well as any future
series provided (i) the Fund does not object to Investors Capital in writing on
any basis or (ii) Investors Capital does not object to the Fund in writing on
the basis of the capabilities of Investors Capital. Investors Capital accepts
such appointment and agrees to render the services and provide, at its own
expense, the office space, furnishings and equipment, and the personnel required
by it to perform the services on the terms and for the compensation herein
provided.
As further delineated on Schedule A of this Agreement, which may be
amended by the parties from time to time, Investors Capital shall provide for,
or assist in managing and supervising all aspects of, the general day-to-day
business activities and operations of the Fund except for investment advisory
services, custodial, transfer agency, dividend disbursing, accounting, auditing
and legal services. Investors Capital shall discharge such responsibilities
subject to the supervision and direction of the Fund's officers and Board of
Directors, and in compliance with the objectives, policies and limitations set
forth in the Fund's registration statement, Articles of Incorporation, By-Laws
and applicable laws and regulations. All agreements with third parties shall be
subject to review and approval by the Fund's executive officers or Board of
Directors.
Investors Capital will perform all of its obligations under this
Agreement in accordance with applicable law, including without limitation laws
against discrimination.
2. Representation and Warranties of Investors Capital
Investors Capital represents and warrants to the Fund that:
A. Investors Capital is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has full power
and authority, corporate and otherwise, to consummate the transactions
contemplated by this Agreement. Investors Capital is duly qualified to carry out
its business, and is in good standing, in the State of New York.
B. The Board of Directors and stockholders of Investors Capital have
taken all action required by law and Investors Capital's Certificate of
Incorporation and By-Laws to authorize the execution and delivery of this
Agreement by Investors Capital and the consummation on behalf of Investors
Capital of the transactions contemplated by this Agreement. This Agreement
constitutes a legal, valid and binding obligation of Investors Capital
enforceable in accordance with its terms. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will result in a breach of, or constitute a default under, or with lapse of time
or giving of notice or both will result in a breach of or constitute a default
under, or otherwise give any party thereto the right to terminate (a) any
mortgage, indenture, loan or credit agreement or any other agreement or
instrument evidencing indebtedness for money borrowed to which Investors Capital
is a party or by which Investors Capital or any of its properties is bound or
affected, or pursuant to which Investors Capital has guaranteed the indebtedness
of any person, or (b) any lease, license, contract or other agreement to which
Investors Capital is a party or by which Investors Capital or any of its
properties is bound or affected. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
result in, or require, the creation or imposition of any mortgage, deed or
trust, pledge, lien, security interest, or other charge or encumbrance of any
nature upon or with respect to any of the properties now or hereafter owned by
Investors Capital.
C. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will violate any provision
of the Certificate of Incorporation or By-Laws of Investors Capital.
D. Except such as have been obtained and as are in full force and
effect and subject to no dispute, claim or challenge, no permit, license,
franchise, approval, authorization, qualification or consent of, registration or
filing with, or notice to, any governmental authority is required in connection
with the execution and delivery by Investors Capital of this Agreement or in
connection with the consummation by Investors Capital of any transactions
contemplated by this Agreement, and no such permit, license, franchise,
approval, authorization, qualification or consent of, registration or filing
with, or notice to any federal, state or local governmental authority is
required in connection with Investors Capital's business or operations as
currently conducted or as currently contemplated to be conducted. Investors
Capital has conducted its business and operations in compliance with all
applicable laws and regulations.
3. Duties of the Fund
A. The Fund will deliver to Investors Capital copies of each of the
following documents and will deliver to Investors Capital all future amendments
and supplements, if any:
(1) A certified copy of the Articles of
Incorporation of the Fund as amended and currently
in effect;
(2) A copy of the Fund's By-Laws as amended and currently in effect,
certified by the Secretary of the Fund;
(3) A copy of the resolution of the Fund's Board of Directors
authorizing this Agreement, certified by the Secretary of the Fund;
(4) The Fund's registration statement on Form N-1A as filed with, and
declared effective by, the U.S. Securities and Exchange Commission
("SEC"), and all amendments thereto;
(5) Each resolution of the Board of Directors of the Fund authorizing
the original issue of its shares, certified by the Secretary of the
Fund;
(6) Copies of the resolutions of the Fund's Board of Directors
authorizing: (i) certain officers and employees of Investors Capital to
give instructions to the Fund's custodian and transfer agent as
required by agreements with such parties, and (ii) certain officers and
employees of Investors Capital to sign checks and pay expenses on
behalf of the Fund, certified by the Secretary of the Fund;
(7) A copy of the current Investment Advisory Agreement between the
Fund and Seix Investment
Advisors, Inc.;
(8) A copy of the Custodian Agreement and Transfer Agency Agreement
relating to the Fund; and
(9) Such other certificates, documents or opinions which Investors
Capital may, in its reasonable discretion, deem necessary or
appropriate in the proper performance of its duties.
B. The Fund will cooperate in providing Investors Capital with all
information reasonably necessary to permit Investors Capital to perform its
duties hereunder.
C. The Fund certifies to Investors Capital that, as of the close of
business on the date of this Agreement, it has authorized capitalization of
2,500,000,000 shares of its common stock, $.001 par value (the "Shares"), and
agrees that Investors Capital will be promptly notified from time to time when
the Fund takes corporate action to increase the number of authorized shares,
including restoring redeemed shares held in its treasury to the status of
authorized and unissued shares.
4. Services To Be Obtained Independently By the Fund
The Fund shall, at its own expense, provide for any of its own:
A. Organizational expenses;
B. Services of an independent accountant;
C. Services of outside legal counsel (including such counsel's review
of the Fund's registration statement, proxy materials and other reports and
materials prepared by Investors Capital under this Agreement);
D. Services contracted for by the Fund directly from parties other than
Investors Capital acting as administrator (or subcontracted for by Investors
Capital on behalf of the Fund, subject to review and approval by the Fund's
executive officers or Board of Directors);
E. Trading operations and brokerage fees, commissions and transfer
taxes in connection with the purchase and sale of securities for its investment
portfolio;
F. Investment advisory services;
G. Taxes, insurance premiums and other fees
and expenses applicable to its operation;
H. Costs incidental to any meeting of shareholders including, but not
limited to, legal and accounting fees, proxy filing fees and costs incidental to
the preparation, printing and mailing of any proxy materials;
I. Cost incidental to Directors' meetings,
including fees and expenses of Directors;
J. The salary and expenses of any officer or
employee of the Fund who is not also an officer or employee
of Investors Capital;
K. Custodian and depository banks, and all
services related thereto;
L. Costs incidental to the preparation,
printing and distribution of its registration statement and
any amendments thereto, and shareholder reports, including
printing setup, printing and mailing costs;
M. All registration fees and filing fees required under the securities
laws of the United States and state regulatory authorities;
N. Fidelity bond and director's and officers'
liability insurance;
O. Record retention costs of third parties;
P. Distribution fees pursuant to any distribution plan, if and when
adopted pursuant to Rule 12b-1 under the 1940 Act; and
Q. Litigation and indemnification expenses
and other extraordinary expenses not incurred in the
ordinary course of the Fund's business.
5. Price, Charges and Instructions
In consideration of the services rendered and expenses assumed by
Investors Capital pursuant to this Agreement, the Fund will pay Investors
Capital a monthly fee at the annual rate of 0.15 % of the Fund's average daily
net assets, subject to a minimum fee of $50,000 for the first twelve (12) months
after the Fund commences investment operations. Such sum shall be paid in
monthly installments by the tenth day of each month for the previous month.
For purposes of this Section 5, the "average daily net assets" of the
Fund shall mean the average of the values placed on the Fund's net assets on
each day pursuant to the applicable provisions of the Fund's Registration
Statement, as amended.
In addition, Investors Capital shall be reimbursed for the reasonable
cost of any and all forms, including blank checks and proxies, used by it in
communicating with shareholders, directors, Fund management, Fund vendors, or
any regulatory agencies on behalf of the Fund, or especially prepared for use in
connection with its obligations hereunder, as well as the reasonable cost of
postage, telephone, telex and telecopy used in communicating with shareholders,
directors, Fund management, Fund vendors or any regulatory agencies on behalf of
the Fund, travel-related expenses when incurred on official Fund business and
microfilm used each year to record the previous year's transactions in
shareholder accounts and computer tapes used for reasonable permanent storage of
records, permanent storage costs for hard copy Fund records and reasonable cost
of insertion of materials in mailing envelopes by outside firms. Prior to
ordering any forms in such supply as it estimates will be adequate for more than
two years' use, Investors Capital shall obtain the written consent of the Fund.
All forms for which Investors Capital has received reimbursement from the Fund
shall be and remain the property of the Fund until used.
At any time Investors Capital may apply to any executive officer of the
Fund or executive officer of the Fund's investment adviser for instructions, and
may consult with legal counsel for the Fund, if consented to by an executive
officer of the Fund at the expense of the Fund, with respect to any matter
arising in connection with the services to be performed by Investors Capital
under this Agreement and Investors Capital 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 the opinion of such counsel. Investors
Capital shall be protected and indemnified in acting upon any paper or document
of the Fund reasonably believed by it to be genuine and to have been signed by
the proper person or persons and shall not be held to have notice of any change
of authority of any representative of the Fund, until receipt of written notice
thereof from the Fund, unless an officer of Investors Capital shall have actual
knowledge of such change. Investors Capital shall also be protected and
indemnified, except where a stop order is in effect, in recognizing transfer
documents which Investors Capital reasonably believes to bear the proper manual
or facsimile signature of the officers of the Fund, and the proper
counter-signatures of any present or former transfer agent.
6. Limitation of Liability and Indemnification
A. Investors Capital shall provide its services in a professional
manner customarily provided by leading mutual fund administration companies.
Investors Capital shall be responsible for the performance of only such duties
as are set forth or contemplated herein or contained in instructions given to it
by the Fund which are not contrary to this Agreement. Investors Capital shall
have no liability for any loss or damage resulting from the performance or
non-performance of its duties hereunder unless caused by or resulting from the
gross negligence, bad faith or willful misconduct of Investors Capital, its
officers or employees or the violation by any of such persons of this Agreement.
In no event, however, shall Investors Capital be liable for any consequential
damages including, without limitation, any taxes, penalties, litigation expenses
or other loss or damage resulting from the failure by other persons providing
services to the Fund to conform to applicable legal or regulatory requirements,
or to the Fund's investment policies and restrictions as set forth in its
registration statement, notwithstanding that Investors Capital, in the course of
carrying out its monitoring duties hereunder, failed to discover such failure.
B. The Fund shall indemnify and hold Investors Capital harmless from
all loss, cost, damage and expense, including reasonable expenses for counsel,
incurred by it resulting from any claim, demand, action or suit in connection
with any action or omission by it in the performance of its duties hereunder, or
as a result of acting upon any instructions reasonably believed by it to have
been executed by a duly authorized officer of the Fund, provided that this
indemnification shall not apply to actions or omissions of Investors Capital,
its officers or employees in cases of its or their own gross negligence or
misconduct or the violation by any of such persons of this Agreement.
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, and if the
Fund elects to assume the defense, such defense shall be conducted by counsel
chosen by the Fund. In the event the Fund elects to assume the defense of any
such suit and retain such counsel, Investors Capital or any of its affiliated
persons, named as defendant or defendants in the suit, may retain additional
counsel at its or their own expense, except that, if the Fund shall have
specifically authorized the retaining of such counsel, then the reasonable
expenses for such counsel shall be reimbursed by the Fund.
7. Confidentiality
Investors Capital agrees on behalf of itself and its directors,
officers and employees to treat confidentially and as proprietary information of
the Fund all records and other information relative to the Fund and its prior,
present or potential shareholders, and not to use such records and information
for any purpose other than performance of its responsibilities hereunder, except
(i) after prior notification to and approval in writing by the Fund, which
approval shall not be unreasonably withheld, when requested to divulge such
information by duly constituted authorities and may not be withheld where
Investors Capital may be exposed to civil or criminal contempt proceedings for
failure to comply, and Investors Capital shall disclose all such records and
information to the investment adviser to the Fund when so requested by the
adviser or the Fund.
8. Compliance With Governmental Rules and Regulations
The Fund assumes full responsibility for complying with all applicable
requirements of the Securities Act of 1933, the 1940 Act and the Securities
Exchange Act of 1934, all as amended, and any laws, rules and regulations of
governmental authorities having jurisdiction, except to the extent that
Investors Capital specifically assumes any such obligations under the terms of
this Agreement.
Investors Capital shall maintain and preserve for the period
prescribed, such records relating to the services to be performed by Investors
Capital under this Agreement as are required pursuant to the 1940 Act and the
Securities Exchange Act of 1934, all as amended, and the rules and regulations
thereunder. All such records shall at all times remain the respective properties
of the Fund, shall be readily accessible during normal business hours and shall
be promptly surrendered upon the termination of this Agreement or otherwise on
written request. Records shall be surrendered in usable machine readable form.
9. Status of Investors Capital
Investors Capital 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.
Nothing herein shall be deemed to limit or restrict Investors Capital's
right or that of any of its affiliates or employees, to engage in any other
business or to devote time and attention to the administration or other related
aspects of any other registered investment company or to render services of any
kind to any other corporation, firm, individual or association.
10. Printed Matter Concerning the Fund or Investors
Capital
Neither the Fund nor Investors Capital shall publish and circulate any
printed matter which contains any reference to the other party without its prior
written approval, excepting such printed matter as refers in accurate terms to
Investors Capital's appointment under this Agreement and/or any other agreement
between the Fund and Investors Capital, and excepting as may be required by
applicable laws or regulations.
11. Term, Amendment and Termination
This Agreement may be modified or amended, from time to time, by mutual
agreement between the parties hereto. This Agreement shall remain in effect from
the date hereof, and shall expire on November 3, 2002. After the expiration
date, this Agreement shall automatically be renewed annually thereafter, and may
be terminated thereafter, by either party on 120 days' prior written notice.
Upon termination of the Agreement, the Fund shall pay to Investors Capital such
compensation as may be due under the terms hereof on the date of such
termination.
12. Default
Should either party materially breach, materially neglect or materially
fail, in whole or in part, to perform its duties and/or observe its obligations
hereunder (a "Default"), that party shall be in Default hereunder (the
"Defaulting Party"). The other party hereto may give written notice to the
Defaulting Party, and if such Default fails to be remedied within thirty (30)
days after receipt of such written notice, then the party giving such notice may
terminate this Agreement by thirty (30) days' written notice of such termination
to the Defaulting Party. Such termination shall not affect any rights or
obligations of either party arising from, or relating to, such Default under the
terms hereof.
Not in limitation of the foregoing, the Fund may terminate this
Agreement prior to November 3, 2002 for reasons other than a Default by
Investors Capital, upon ninety (90) days' written notice to Investors Capital
and payment of liquidated damages to Investors Capital. The liquidated damages
amount shall equal the aggregate of monthly fees due or paid to Investors
Capital under this Agreement for the last three (3) months prior to receipt of
notice of termination. Upon payment of such sum, Investors Capital shall have no
further claim to fees due under this Agreement for periods after the termination
date.
The provisions of this Section 12 shall not limit either party's
termination rights under Section 11 of this Agreement. The provisions of Section
11 and this Section 12 shall govern the method of termination of this Agreement,
but shall not limit any other rights or remedies of either party in the event of
any breach of this Agreement by the other party.
13. Notices
Any notice or other communication authorized or required hereunder
shall be in writing or by confirming telegram, cable, telex or facsimile sending
device. Notice shall be addressed to the Fund at c/o Investors Capital Services,
Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Mr. Xxxx
Xxxxx, Treasurer; and to Investors Capital Services, Inc., 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx, President.
Either party may designate a different address by notice to the other party. Any
such notice or other communication shall be deemed given when actually received.
14. Non-Assignability
This Agreement shall not be assigned by either of the parties hereto
without the prior consent in writing of the other party. Any purported
assignment in violation of this Agreement shall be void and of no effect.
15. Successors
This Agreement shall be binding on and shall inure to the benefit of
the Fund and Investors Capital, and their respective successors and permitted
assigns.
16. Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first above
written.
ATTEST: SAMCO
FUND, INC.
By:
Xxxxx X. Xxxxxx, Assistant Secretary
Xxxxxxxxx Xxxx, Chairman
ATTEST:
INVESTORS CAPITAL SERVICES, INC.
By:
Xxxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxx
SCHEDULE A
to
ADMINISTRATION AGREEMENT
between
SAMCO FUND, INC.
and
INVESTORS CAPITAL SERVICES, INC.
Pursuant to the attached Administration Agreement, Investors
Capital Services, Inc. ("Investors Capital") will provide
the following services to SAMCO Fund, Inc. (the "Fund"):
1) Supervision of all third party vendors to the Fund - Investors
Capital will supervise the quality of service and
competitiveness of fees of all Fund vendors, except the
investment adviser. Investors Capital will develop day-to-day
working relationships with existing vendors as well as
evaluate alternative vendor candidates, as reasonably
requested by the Fund's officers. The vendors that Investors
Capital will be responsible for include:
a) Transfer and Dividend Disbursing
----------------------------------
Agent, Fund Accounting Agent and
----------------------------------
Custodian - Investors Capital will
---------
make necessary efforts to ensure
that all legally required
functions are performed at a high
quality level and at a competitive
fee. Investors Capital will
strive to enhance the service
levels as well as reporting
capabilities.
b) Outside Counsel, Independent Accountant and Other
Vendors Investors Capital will coordinate
communications with all other Fund vendors with a
goal of enhancing service levels while controlling
costs.
c) Insurance Providers - Investors
---------------------
Capital will identify potential
insurance providers and evaluate
the comparative terms and costs of
fidelity bond, E&O and D&O
coverage. Investors Capital will
continually monitor the
appropriateness of the chosen
providers and coverage.
2) Monitor and Report on Compliance Investors Capital will
monitor the Fund's compliance with the regulations of
Sub-Chapter M of the Internal Revenue Code with particular
emphasis on the asset diversification, income and short-short
tests. Investors Capital will monitor the Fund's compliance
with the securities laws, particularly the Investment Company
Act of 1940, with particular emphasis on the diversification
and voting stock tests. Investors Capital will monitor all
Prospectus, Statement of Additional Information and
Board-imposed compliance limitations. Investors Capital will
report compliance status in all required areas in a format and
at a frequency mutually agreed upon between Fund officers and
directors and Investors Capital, including a quarterly review
and reporting pursuant to the Fund's Code of Ethics policy.
3) Prepare and Monitor Annual Compliance and Administrative
Calendar - Investors Capital will prepare an annual calendar
which will include key dates in the operations of the Fund,
such as Board and Audit Committee meetings and mailings,
filing dates, compliance monitoring and other mutually agreed
upon events. Investors Capital will monitor the calendar and
report on status of activity on a regular basis to Fund
officers.
4) Board of Directors' Meetings - Investors Capital will prepare
and mail all necessary Resolutions, Agenda, Powers of Attorney
and other material in advance of each Board meeting, and will
prepare and mail all Board written consents. Investors Capital
will do a presentation to the Board of the status of all
administrative and operations functions at each meeting.
Investors Capital will coordinate other Vendor presentations
to the Board when required. Investors Capital will pay all
required directors' fees and expenses, from the Fund's
accounts maintained with its custodian, on a timely and
accurate basis.
5) Monthly Fund Management Reporting Investors Capital will
collect, review and summarize all Vendor reports. Investors
Capital will prepare a monthly administrative report which
will include the financial statements, a compliance summary,
expense ratio calculations, portfolio turnover ratio
calculations and performance calculations, and will prepare
other reasonably requested activity reports.
6) Shareholder Reports - Investors Capital will prepare the
semi-annual and annual financial reports and footnotes
required by Securities and Exchange Commission ("SEC")
regulation for reporting to the shareholders and the SEC.
Investors Capital will coordinate with the Investment Adviser
and Independent Accountants to obtain the appropriate letters
to the shareholders. Investors Capital will coordinate the
printing of the reports and mail to the shareholders as well
as file copies with the appropriate regulatory authorities.
Investors Capital will respond to any shareholder inquiries
under the direction of the Fund's officers.
7) Tax Filings - Investors Capital will prepare for Fund officer
review all necessary tax returns and file such returns on a
timely basis with the appropriate regulatory authorities.
These will include all Federal corporate and excise tax
returns, state returns, and 1099 MISC returns for directors
fees, and if required, for fees to third party vendors.
8) SEC Filings - Investors Capital will prepare for Fund
officer review all necessary filings and make such filings on
a timely basis with the SEC. These will include Form N-SAR,
Rule 24e-2 and 24f-2 filings, proxy materials, post-effective
amendments to Form N-1A and any other SEC filings.
9) Blue Sky Monitoring and Filings Investors Capital will
monitor Blue Sky compliance in each jurisdiction and perform
all administrative functions, including the making of
necessary filings on behalf of the Fund, under the supervision
of the Fund's Distributor. Investors Capital will report the
status of the Fund's registration of each series of Shares on
a regular basis to the Fund's directors and officers.
10) Other Filings - On behalf of the Fund, Investors Capital will
prepare and file any other required documents with the
appropriate jurisdiction, including abandoned property reports
and state corporate law filings.
11) Holdings Reconciliations - Investors Capital will review
holdings reconciliations between the Investment Adviser and
the Custodian/Fund Accounting Agent. All discrepancies will be
researched and reported promptly to the Fund's officers or
directors.
12) Proxy Statement and Annual Meeting Investors Capital will
prepare with the assistance of Fund counsel all proxy
materials, file them with the SEC and mail them to the
shareholders. If it is necessary for the Fund to have an
Annual Meeting, Investors Capital will set up the Annual
Meeting, prepare the agenda and script, tabulate and solicit
votes if requested to do so by the Fund's officers or
directors and perform the duties of the inspector of
elections.
13) Fund Expenses - Investors Capital will review all Fund
expenses and strive to create efficiencies and economies of
scale wherever possible. Investors Capital, under supervision
and direction of Fund officers, will pay all Fund bills in an
accurate and timely manner from the Fund's accounts maintained
with its custodian.
14) New Series Registration - Investors Capital will assist
management in the preparation of and filing with the SEC of
all new Series or other changes to the Fund's prospectus and
Statement of
Additional Information.
15) General - Investors Capital will make its staff available to
Fund management to assist in or to respond to any reasonable
request for Fund- or industry-related information. If
requested, Investors Capital will make its facilities
available for meetings of the Fund's officers or directors.
Investors Capital will assist in any examination of the Fund
by the SEC, Internal Revenue Service or any other regulatory
agency.
