AMENDMENT NUMBER ONE
TO
AMENDED AND RESTATED SUB-ADMINISTRATION AGREEMENT
THIS AMENDMENT NUMBER ONE to the Amended and Restated Sub-Administration
Agreement (this "Amendment") is entered into as of the 15th day of April, 2009
("Amendment Effective Date") by and between Xxxxxx Investment Partners, Inc., a
Pennsylvania corporation (the "Administrator"), and SEI Investments Global Funds
Services, a Delaware statutory trust (the "Sub-Administrator").
WHEREAS, the Administrator and the Sub-Administrator entered into an Amended and
Restated Sub-Administration Agreement dated as of the 19th day of June, 2008
(the "Agreement"); and
WHEREAS, the Administrator and the Sub-Administrator desire to amend the
Agreement as provided herein.
NOW THEREFORE, in consideration of the premises, covenants, representations and
warranties contained herein, the parties hereto agree as follows:
1) Schedule A. Schedule A of the Agreement is hereby deleted in its
entirety and replaced as set forth in Attachment 1 to this Amendment.
2) Schedule C. Schedule C of the Agreement is hereby deleted in its
entirety and replaced as set forth in Attachment 2 to this Amendment.
3) Ratification of Agreement. Except as expressly amended and provided
herein, all of the terms, conditions and provisions of the Agreement
are hereby ratified and confirmed to be of full force and effect, and
shall continue in full force and effect.
4) Counterparts. This Amendment shall become binding when any one or more
counterparts hereof individually or taken together, shall bear the
original or facsimile signature of each of the parties hereto. This
Amendment may be executed in any number of counterparts, each of which
shall be an original against any party whose signature appears thereon,
but all of which together shall constitute but one and the same
instrument.
5) Governing Law. This Amendment shall be construed in accordance with the
laws of the State of Delaware and the applicable provisions of the 1940
Act. To the extent that the applicable laws of the State of Delaware,
or any provisions herein, conflict with the provisions of the 1940 Act,
the latter shall control.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment by their
duly authorized representatives as of the day and year first above written.
XXXXXX INVESTMENT PARTNERS, INC.
By: /s/ Xxxxx X. XxXxxxx
----------------------------
Name: Xxxxx X. XxXxxxx
Title: General Counsel and Chief Compliance Officer
SEI INVESTMENTS GLOBAL FUNDS SERVICES
By: /s/ Xxxx Xxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
ATTACHMENT 1
SCHEDULE A
TO THE AMENDED AND RESTATED SUB-ADMINISTRATION AGREEMENT
DATED AS OF JUNE 19, 2008
BETWEEN
XXXXXX INVESTMENT PARTNERS, INC.
AND
SEI INVESTMENTS GLOBAL FUNDS SERVICES
Portfolios: This Agreement shall apply to all Portfolios, all classes
of Xxxxxx Funds and any sub-accounts ("the Trust"), either now
existing or in the future created. The following is a listing
of the current portfolios of the Trust (collectively, the
"Portfolios"):
Xxxxxx Concentrated Growth Fund
Xxxxxx Core Growth Fund
Xxxxxx Emerging Growth Fund
Xxxxxx International Core Growth Fund
Xxxxxx Large Cap Growth Fund
Xxxxxx Midcap Equity Fund
Xxxxxx Xxxxxx Growth Fund
Xxxxxx New Enterprise Fund
Xxxxxx Large Cap Value Fund
Xxxxxx Small Cap Equity Fund
Xxxxxx Small Cap Growth Fund
Xxxxxx Quantitative Broad Market Equity Fund
Xxxxxx Quantitative Large Cap Value Fund
Xxxxxx Spectrum Fund (anticipated launch May 7, 2009)
Fees: Pursuant to Article 3 the Administrator shall pay the
Sub-Administrator compensation for services rendered to the
Portfolios equal to the greater of: (i) an annual rate of .035%
on the first $3.5 billion of assets; .0325% on the next $6.5
billion of assets, and .0175% on all assets over $10 billion.
The fees are calculated daily per Portfolio and paid monthly,
or a Trust level minimum equal to $70,000 annually per each
Portfolio, and a $15,000 annual minimum administration fee for
additional share classes. The Administrator shall pay an
additional, annual $5,000 sub-account fee for each sub-account
utilizing the SunGard Multi-Manager Module. The fees are
calculated daily and paid monthly.
Term: This Agreement shall remain in effect until October 1, 2010
(the "Initial Term") and thereafter shall automatically renew
for successive two year terms (each, a "Renewal Term"), unless
and until this Agreement is terminated in accordance with the
provisions of Article 5 hereof.
[END OF SCHEDULE A]
ATTACHMENT 2
SCHEDULE C
TO THE AMENDED AND RESTATED SUB-ADMINISTRATION AGREEMENT
DATED AS OF JUNE 19, 2008
BETWEEN
XXXXXX INVESTMENT PARTNERS, INC.
AND
SEI INVESTMENTS GLOBAL FUNDS SERVICES
Performance Standards
The Sub-Administrator's performance in connection with this Agreement shall be
determined by measuring the key performance indicators ("KPI") set forth herein.
Such KPI may be amended by mutual agreement of the parties from time to time,
against the corresponding service quality performance standards set forth below
(the "Performance Standards").
Definitions:
Capitalized terms not defined herein shall have the meaning ascribed to them in
the main body of this Agreement. In the case of conflict between a term defined
in this Schedule C and the main body of this Agreement, the term as defined in
this Schedule C shall control in each instance such term is used in this
Schedule C.
"Business Day" means any Monday thru Friday, 8:00 a.m. - 5:00 p.m., excluding
any Saturday, Sunday or any official closing of the New York Stock Exchange.
"Calendar Quarter" means a three-month period ending on March 31, June 30,
September 30 or December 31, provided however that with respect to the first
Calendar Quarter for which the Sub-Administrator calculates its Performance
Rating in accordance with the procedures set forth herein, Calendar Quarter
shall mean the period beginning June 1, 2008 and ending September 30, 2008 and
the calculation of the Performance Rating for such period shall be adjusted as
appropriate to reflect the total number of Events and KPI for such four month
period.
"Event" means each KPI that is monitored during any month and each KPI that
would have been monitored during any month but for the fact that such KPI
relates to an activity that is not required to be performed during the given
month (e.g. semi-annual or annual reports).
"NAV Error" means a Portfolio NAV that contains one or more errors in the
calculation of net asset value, which error(s) arise out of an action or
omission of the Sub-Administrator and is greater than $0.01 per share as set
forth in the Xxxxxx Funds' NAV Error Resolution Policy, a copy of which has been
approved by the board of directors of the Portfolios.
"Performance Rating" means the number of Successful Events (as defined below)
during a Calendar Quarter divided by three times the number of KPI, currently
forty-five.
"Performance Minimum" means the minimum acceptable Performance Rating that the
Sub-Administrator shall achieve during any Calendar Quarter. The Performance
Minimum as of the date hereof is 85%.
"Performance Report" means the quarterly report provided by the
Sub-Administrator to the Administrator that shall set forth the
Sub-Administrator's Performance Rating during the preceding Calendar Quarter.
"Sub-Account" means each separate strategy within a Portfolio, or separately
managed account utilizing the SunGard Multi-Manager Module
Performance Standards:
KPI PERFORMANCE STANDARDS
----------------------------------------------------------------------------------------------------------------------------
1. NAV Accuracy Sub-Administrator will calculate each Portfolio's NAV free from NAV
Errors at a calculated rate of 99.8% or above.
2. NAV Reporting to NASDAQ 2nd Session Each Portfolio NAV calculated by the Sub-Administrator and transmitted to
NASDAQ 2nd Session will be delivered on time at a calculated rate of 97.0%
or above.
3. Performance Fee Adjustments Sub-Administrator will calculate and record performance fee adjustments for
each Portfolio and each Sub-Account on the last Business Day of each month
at a calculated rate of 100%.
4. Daily Cash Availability Sub-Administrator will provide daily cash availability statements relating
to each Portfolio and each Sub-Account to the Administrator each Business
Day at or before 11 a.m. at a calculated rate of 95% or above.
5. Financial Statement Delivery Sub-Administrator will provide financial statements to shareholders on
or before the statutory due date at a calculated rate
of 100%.
6. Form N-SAR/24f-2 Filing Sub-Administrator will prepare Form N-SAR and Form 24f-2 for each Portfolio
on or before the statutory due date at a calculated rate of 100%.
7. Compliance Report Card Sub-Administrator will provide a standard report card of compliance violations
for each Portfolio to the Administrator on or before that date that is ten
Business Days following month-end at a calculated rate of 100%.
8. Compliance Breach Notification Sub-Administrator will notify the Administrator of alleged material compliance
violations within one Business Day following the date on which the Sub-Administrator
becomes aware of the alleged violation at a calculated rate of 100%.
9. Speed to Answer Sub-Administrator will answer in-bound telephone calls to toll-free lines set
up to receive shareholder telephone calls within 25 seconds from the time
such call is first received at a calculated rate of 85% or above.
10. Dropped Calls Fewer than 5% of in-bound telephone calls to toll-free lines set up to
receive shareholder telephone calls will be "dropped." For purposes of
the foregoing, a "dropped" call refers to a call that is connected but
is not picked-up by the Sub-Administrator.
11. Corporate Action Processing Sub-Administrator will process all security corporate actions in a manner
that takes into account the most readily available market data on the
ex-dividend date at a calculated rate of 95%.
12. Compensation of Board of Trustees Sub-Administrator will pay compensation to Fund board of trustees within
7 business days of a Board or Committee meeting or within 4 business
days of receiving Administrator approval of the amount to pay each
trustee, whichever comes later, at a calculated rate of 100%.
13. Payment of Fund Expenses Sub-Administrator will pay all Fund authorized expenses not later than 30
days from its receipt of an Administrator-approved invoice or request for
payment.
Data Collection and Performance Rating Calculation:
Beginning as of the Calendar Quarter commencing June 1, 2008 and ending
September 30, 2008, and for each Calendar Quarter thereafter during the term of
this Agreement, the Sub-Administrator will calculate its Performance Rating in
accordance with the procedures set forth herein, and deliver a Performance
Report to the Administrator.
During the month-end process, each Event will be assigned a value of one when
the Sub-Administrator performs the KPI at or above the corresponding Performance
Standard or when such KPI is not monitored due to the fact that such KPI relates
to an activity that is not required to be performed during such month
("Successful Events") and a value of zero when the Sub-Administrator fails to
perform the KPI at or above the corresponding Performance Standard ("Deficient
Events").
The Sub-Administrator's quarterly Performance Rating shall be calculated by
dividing the aggregate number of Successful Events during the Calendar Quarter
by three times the number of KPI, currently thirty-nine. A "Service Level
Deficiency" will occur when the Performance Rating falls below the Performance
Minimum.
Performance Standard Exceptions:
In determining the Sub-Administrator's conformance with the KPI set forth
herein, the Sub-Administrator shall be excused from its failure to achieve any
KPI if such failure is caused by any of the following: (i) the Sub-Administrator
does not receive, after proper and timely request, if applicable, proper and
timely reporting from the Administrator, custodians, prime brokers, transfer
agents, banks, pricing agents, investment manager and any outside agent whose
information is integral to the Sub-Administrator's deliverables; (ii) the
Sub-Administrator does not receive, after timely request, timely approvals and
confirmations from the Portfolios and the investment manager as required in
connection with the performance standards; or (iii) performance within the
stated KPI is adversely affected by a change in the standards of a third party
processing agent outside of the control of the Sub-Administrator or upon the
occurrence of one or more circumstances or events of force majeure or equipment
failure, as described in ARTICLE 15 or ARTICLE 16 of the Agreement.
An Event shall not be considered a Deficient Event to the extent that the
Sub-Administrator's errors or delays are caused by any of the exceptions set
forth above or other circumstances outside the reasonable control of the
Sub-Administrator, including, without limitation, any changes or updates not
previously requested by the Portfolios during month-end processing. Such Events
shall not be included in the total number of Events for purposes of calculating
the Performance Rating during any Calendar Quarter.
Reporting:
The Sub-Administrator shall provide a written Performance Report to the
Administrator that shall set forth the Sub-Administrator's Performance Rating
during the applicable Calendar Quarter as well as the Sub-Administrator's
monthly performance of each of the KPI. The Sub-Administrator will prepare and
distribute the Performance Report to the Administrator promptly following the
close of the applicable Calendar Quarter and use best efforts before the
deadline specified by the Administrator for inclusion of the report in Board of
Trustee meeting materials. The Administrator will promptly review the
Performance Report and provide comments, if any, to the Sub-Administrator.
Notification & Corrective Action:
In the event of a Service Level Deficiency, the Administrator may provide
written notification ("Deficiency Notice") to the Sub-Administrator requesting
that the Sub-Administrator modify its procedures in an effort to ensure that
such Service Level Deficiency is resolved. Upon receipt of a Deficiency Notice,
the Sub-Administrator shall have at least one full Calendar Quarter ("Cure
Period") to implement corrective action with respect to such Service Level
Deficiency. If such efforts are successful in correcting the Service Level
Deficiency in the next Calendar Quarter ("Cure"), the Funds shall have no other
rights with respect to such Service Level Deficiency. In the event that the
Sub-Administrator fails to Cure the Service Level Deficiency during the Cure
Period, the Sub-Administrator shall issue a credit to the Administrator on the
Administrator's next monthly invoice equal to $25,000. The Sub-Administrator
shall only be entitled to one Cure Period during any rolling twelve month
period. Thereafter, any Service Level Deficiency shall immediately result in the
Sub-Administrator issuing a credit to the Administrator on the next monthly
invoice equal to $25,000.
NAV Error Credit:
Notwithstanding the foregoing, in the event that the Sub-Administrator
calculates a Portfolio NAV that includes an NAV Error, the Sub-Administrator
shall provide the Administrator with NAV Error credits in the manner set forth
below:
NAV Error NAV Error Credit
--------------------------------------------------------------- ----------------------------------------
1st NAV Error during fiscal twelve month period ........... $ 5,000
2nd NAV Error during fiscal twelve month period ........... $15,000
3rd NAV Error and each subsequent NAV Error during fiscal
twelve month period ....................................... the greater of $25,000 each
or all fund and/or shareholder
damages directly related to the
NAV error(s) as set forth in
Section III (1) and III (2) of
the Xxxxxx Funds NAV Error
Resolution Policy, a copy of which
has been provided to the Sub-Administrator
in writing and in advance
The foregoing credit(s) shall be provided to the Administrator by the
Sub-Administrator on the next monthly invoice immediately following
identification of the applicable NAV Error.
