Exhibit 23 (h-1)
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT ("Agreement") is made as of July 1, 2006 by
and between PACIFIC CAPITAL FUNDS (the "Trust"), a Massachusetts business trust
registered with the Securities and Exchange Commission (the "Commission") as an
open-end management investment company under the Investment Company Act of 1940,
as amended (the "1940 Act") and BANK OF HAWAII (the "Administrator"), a Hawaii
banking corporation with its principal office at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxx 00000.
WHEREAS, the Trust desires to retain Administrator to perform certain
administration services for the Trust and the various series of the Trust (each
a "Fund" and collectively the "Funds"); and
WHEREAS, Administrator is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter contained, Administrator and the Trust agree as follows:
1. Retention of Administrator.
(a) The Trust hereby appoints Administrator, subject to the
supervision, direction and control of the Trust's board of trustees (the
"Board"), to furnish the Funds with the services described in Schedule A to this
Agreement (the "Services").
(b) The Trust hereby represents and warrants to Administrator that
this Agreement has been disclosed to, and approved by, the Board, and that the
Trust has provided all such information to the Board as has been requested by
the Board in connection with the Board's review or approval of the arrangements
contemplated under this Agreement.
(c) With the prior approval of the Trust, the Administrator may
utilize agents and/or subcontractors ("Sub-Agents") to perform some or all of
Administrator's obligations under this Agreement; provided, however, that
Administrator shall be fully responsible for the acts of each such Sub-Agent and
shall not be relieved of any of its obligations under this Agreement by the
appointment of a Sub-Agent, provided further, however, that the
Sub-administrator retained by the Trust under the Sub-Administration Agreement
of even date herewith shall not be deemed a Sub-Agent for any purposes hereof.
2. Allocation of Charges and Expenses.
(a) Administrator shall furnish at its own expense the executive,
supervisory and clerical personnel, and the office space, equipment and
facilities (including without limitation facilities for meetings of the Board
and shareholders of the Trust held at the offices of
Administrator) necessary to perform its obligations under this Agreement.
Administrator shall also provide the items which it is obligated to provide
under this Agreement, and shall pay all compensation, if any, of officers and
trustees of the Trust who are affiliated persons of Administrator or any
affiliated person of Administrator; provided, however, that unless otherwise
specifically provided, Administrator shall not be obligated to pay the
compensation of any other employee of the Trust retained by the Trust to perform
services on behalf of the Trust.
(b) Administrator will perform all services required to be performed
by it under this Agreement, except those services performed by the
Sub-administrator or by Sub-Agent(s) as provided under this Agreement. The Trust
shall pay or cause to be paid all expenses of the Trust not otherwise allocated
to the Administrator under this Agreement or to the Sub-administrator under the
Sub-Administration Agreement, including, without limitation, organization costs,
taxes, expenses for legal and auditing services, the expenses of preparing
(including typesetting), printing and mailing reports, prospectuses, statements
of additional information, proxy solicitation material and notices to existing
shareholders, expenses incurred in connection with issuing and redeeming shares,
the costs of custodial services, the cost of initial and ongoing registration of
the shares under Federal and state securities laws, fees and out-of-pocket
expenses of trustees who are not affiliated persons of Administrator or any
affiliated person of Administrator, insurance, interest, brokerage costs,
litigation and other extraordinary or nonrecurring expenses, and all fees and
charges of investment advisors as set forth in its investment advisory
agreements with the Trust.
3. Compensation of Administrator and Sub-Agent(s).
(a) In consideration of Administrator's performance of the Services,
the Trust will pay Administrator the fees set forth on Schedule B to this
Agreement. In addition to such fees and except as otherwise provided in this
Agreement, the Trust will reimburse the Administrator for all of its reasonable
out-of-pocket expenses (for which no xxxx-up for Administrator's overhead shall
be included) incurred in providing the Services, including, but not limited to,
travel and lodging expenses incurred by officers and employees of Administrator
in connection with attendance at (i) Board meetings and (ii) any other meetings
for which such attendance is requested or agreed upon by the parties.
(b) If this Agreement becomes effective subsequent to the first day of
a month or terminates before the last day of a month, Administrator's
compensation for that part of the month in which this Agreement is in effect
shall be prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of Administrator's compensation for the preceding month
shall be made promptly.
(c) All amounts paid by Trust to Administrator pursuant to this
Agreement shall be paid by the Trust to Administrator or any Sub-Agent as
Administrator and the Trust may agree.
(d) In the event that Administrator or any Sub-Agent is requested or
authorized by the Trust or is required by governmental regulation, summons,
subpoena,
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investigation, examination or other legal or regulatory process to produce
documents or personnel in connection with any legal or regulatory proceeding
with respect to services provided by Administrator or any Sub-Agent to the Trust
or any Fund, the Trust will, so long as Administrator or such Sub-Agent is not
the subject of the investigation or proceeding in which the information is
sought, pay Administrator and/or Sub-Agent for its professional time (at its
standard billing rates) and reimburse Administrator for its out-of-pocket
expenses (including reasonable attorneys fees) incurred in responding to such
requests or requirements.
(e) All rights of compensation under this Agreement for services
performed as of the termination date shall survive the termination of this
Agreement.
4. Indemnification and Limitation of Liability of Administrator and
Trust.
(a) The duties of Administrator shall be confined to those expressly
set forth in this Agreement, and no implied duties are assumed by or may be
asserted against it under this Agreement. Administrator shall use reasonable
professional diligence to ensure the accuracy and sufficiency of all services
performed under this Agreement, but shall not be liable to the Trust for any
error of judgment or mistake of law or for any loss arising out of any act or
omission in carrying out its duties under this Agreement, except a loss
resulting from its willful misfeasance, bad faith or negligence in the
performance of its duties, or by reason of its reckless disregard of its
obligations and duties under this Agreement, except as may otherwise be provided
under provisions of applicable law which cannot be waived or modified by this
Agreement. As used in this Section 4, the term "Administrator" shall include
directors, officers, employees and other agents of Bank of Hawaii as well as
Bank of Hawaii itself, to the extent such persons' conduct relates to the
performance of the Services under this Agreement. Any officer, director,
employee or agent of Administrator who is or who becomes an officer, trustee,
director, employee or agent of the Trust shall be deemed, when engaged in
rendering the Services under this Agreement in such capacity, to be rendering
services directly to or for the Trust, and shall not be deemed to be acting as
an officer, director, employee or agent or one under the control or direction of
Administrator.
(b) Except as provided in Section 3(d) of this Agreement, so long as
Administrator acts in good faith and with due diligence and without negligence,
willful misfeasance or reckless disregard of its obligations and duties under
this Agreement, the Trust shall indemnify Administrator and hold it harmless
from and against any and all actions, suits and claims, whether groundless or
otherwise, and from and against any and all losses, damages, costs, charges,
reasonable counsel fees and disbursements, payments, expenses and liabilities
(including reasonable investigation expenses) arising directly or indirectly out
of Administrator's actions or omissions with respect to the performance of the
Services.
(c) Administrator shall indemnify the Trust and hold it harmless from
and against any and all actions, suits and claims, whether groundless or
otherwise, and from and against any and all losses, damages, costs, charges,
reasonable counsel fees and disbursements, payments, expenses and liabilities
(including reasonable investigation expenses) arising directly
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or indirectly out of Administrator's actions or omissions involving
Administrator's negligence, bad faith, willful misfeasance or reckless disregard
of its obligations under this Agreement.
(d) The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited, subject to the agreement that amounts so advanced must be
returned to the extent indemnification is ultimately found not to be merited. In
order that the indemnification provisions contained herein shall apply, however,
it is understood that if in any case a party may be asked to indemnify or hold
the other party harmless, the indemnifying party shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and it is
further understood that the indemnified party will use all reasonable care to
identify and notify the indemnifying party promptly concerning any situation
which presents or appears likely to present the probability of such a claim for
indemnification against the indemnifying party, but failure to do so in good
faith shall not affect the rights hereunder except to the extent the
indemnifying party is materially prejudiced thereby.
The indemnifying party shall be entitled to participate at its own
expense, or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the indemnified
party, whose approval shall not be unreasonably withheld. In the event that the
indemnifying party elects to assume the defense of any suit and retain counsel,
the indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
As to any matter eligible for indemnification, an indemnified party
shall not effect any settlement or confess judgment without the consent of the
indemnifying party, and an indemnifying party shall not effect any settlement or
confess judgment without the consent of the indemnified party, which consent in
either case shall not be withheld or delayed unreasonably.
(e) Administrator may apply to the Trust at any time for instructions
and may consult with counsel for the Trust and with accountants and other
experts with respect to any matter arising in connection with Administrator's
duties, and Administrator shall not be liable nor accountable for any action
taken or omitted by it in good faith in accordance with such instruction or with
the opinion of such counsel, accountants or other experts. Administrator shall
notify the Trust at any time Administrator believes that it is in need of the
advice of counsel (other than counsel in the regular employ of Administrator or
any affiliated companies) with regard to Administrator's responsibilities and
duties pursuant to this Agreement. After so notifying the Trust, Administrator,
at its discretion, shall be entitled to seek, receive and act upon advice of
legal counsel of its choosing, such advice to be at the expense of the Trust
unless relating to a matter involving Administrator's willful misfeasance, bad
faith, negligence or reckless disregard of Administrator's obligations and
duties under this Agreement.
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(f) In performing the Services, Administrator may rely conclusively
upon the terms of the Prospectuses and Statement of Additional Information of
the Trust relating to the relevant Funds, as well as the minutes of Board
meetings (if applicable) and other records of the Trust, unless Administrator
receives written instructions to the contrary in a timely manner from the Trust.
Administrator shall be protected in acting upon any document which it reasonably
believes to be genuine and to have been signed or presented by the proper person
or persons. Administrator will not be held to have notice of any change of
authority of any officers, employees or agents of the Trust until receipt of
written notice thereof from the Trust.
(g) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL ADMINISTRATOR, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE,
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SIMILAR DAMAGES, OR FOR LOST
PROFITS OR LOST REVENUE, 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.
5. Activities of Administrator.
The services of Administrator to be rendered under this Agreement are
not to be deemed to be exclusive. Administrator is free to render such services
to others and to have other businesses and interests. It is understood that
trustees, officers, employees and shareholders of the Trust are or may be or
become interested in Administrator as officers, employees or otherwise and that
directors, officers and employees of Administrator and its counsel are or may be
or become similarly interested in the Trust, and that Administrator may be or
become interested in the Trust as a shareholder or otherwise.
6. Duration of this Agreement.
(a) This Agreement shall become effective upon the date first written
above, and shall continue in effect until December 31, 2009 (the "Initial
Term"). Thereafter, unless otherwise terminated as provided herein, this
Agreement shall be renewed automatically for successive one year periods
("Rollover Periods"). This Agreement may be terminated only (i) by provision of
a notice of nonrenewal in the manner set forth below, (ii) by mutual agreement
of the parties, (iii) for "cause," as defined below, upon the provision of sixty
(60) days advance written notice by the party alleging cause or (iv) with
respect to a particular Fund, by the merger, dissolution or reorganization of a
Fund such that the provision of the Services to that Fund is no longer
necessary. Written notice of nonrenewal must be provided at least ninety (90)
days prior to the end of the Initial Term or any Rollover Period, as the case
may be.
(b) In addition to the foregoing, this Agreement may be terminated for
"cause." For these purposes, "cause" shall mean (i) a material breach of this
Agreement that has not been remedied for 30 days following written notice of
such breach from the non-breaching
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party; (ii) a final, unappealable judicial, regulatory or administrative ruling
or order in which the party to be terminated has been found guilty of criminal
or unethical behavior in the conduct of its business; (iii) the Board, upon a
vote of the independent trustees, reasonably determines that continued
association with the Administrator will be materially damaging to the Funds as a
result of regulatory matters arising after the date of this Agreement; or (iv)
financial difficulties on the part of the party to be terminated which are
evidenced by the authorization or commencement of, or involvement by way of
pleading, answer, consent or acquiescence in, a voluntary or involuntary case
under Title 11 of the United States Code, as from time to time is in effect, or
any applicable law, other than said Title 11, of any jurisdiction relating to
the liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors. For purposes of this definition of
"cause," a material breach shall include, but not be limited to, any failure on
the part of the Trust to pay the fees due and payable to Administrator or
Sub-Agent pursuant to Section 3 of this Agreement within 60 days following the
due date; provided, however, that Administrator shall not terminate this
Agreement based solely upon a failure to pay an amount to Administrator which is
the subject of a good faith dispute, if (x) the Trust is attempting in good
faith to resolve such dispute with as much expediency as may be possible under
the circumstances, and (y) the Trust continues to perform its obligations
hereunder in all other material respects (including paying all fees and expenses
not subject to reasonable dispute hereunder).
(c) Notwithstanding the foregoing, following any termination, in the
event that Administrator in fact continues to perform any one or more of the
services contemplated by this Agreement with the consent of the Trust, the
provisions of this Agreement, including without limitation the provisions
dealing with indemnification, shall continue in full force and effect. Fees and
out-of-pocket expenses incurred by Administrator but unpaid by the Trust upon
such termination shall be immediately due and payable upon and notwithstanding
such termination. Administrator shall be entitled to collect from the Trust in
addition to the fees and disbursements provided by Article 4 hereof, the amount
of all Administrator's cash disbursements in connection with Administrator's
activities in effecting such termination, including without limitation, the
delivery to the Trust and/or its distributor or investment adviser and/or other
parties of the Trust's property, records, instruments and documents.
7. Assignment.
This Agreement shall not be assignable by either party without the
written consent of the other party. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties to this Agreement and their
respective successors and permitted assigns.
8. Amendments.
No provision of this Agreement may be changed, waived, discharged or
terminated, except by an instrument in writing signed by the parties to this
Agreement.
9. Certain Records.
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Administrator shall maintain customary records in connection with its
duties as specified in this Agreement. Any records required to be maintained and
preserved pursuant to Rules 31a-1 and 31a-2 under the 1940 Act which are
prepared or maintained by Administrator shall be the property of the Trust and
will be made available to or surrendered promptly to Administrator upon its
request or to the Trust upon its request, and/or made available for inspection
by the Commission at reasonable times.
In case of any request or demand for the inspection of such records by
another party, Administrator shall notify the Trust and follow the Trust's
instructions as to permitting or refusing such inspection; provided that
Administrator may exhibit such records to any person in any case where it is
advised by counsel to the Trust that the Trust may be held liable for failure of
Administrator to do so, or Administrator could be held in contempt for failure
to do so.
10. Definitions of Certain Terms.
The term "affiliated person," when used in this Agreement, shall have
the meaning specified in the 1940 Act and the rules and regulations thereunder,
subject to such exemptions as may be granted by the Commission.
Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
11. Notice.
Any notice required or permitted to be given by either party to the
other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, or by nationally recognized overnight courier, addressed by the
party giving notice to the other party at the following address: if to
Administrator, at Bank of Hawaii, 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxx 00000, Attention: Product Manager, Investment Products Division; and if
to the Trust, at Pacific Capital Funds, 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxx 00000, Attention: President; or at such other address as such
party may from time to time specify in writing to the other party pursuant to
this Section.
12. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York, subject to any applicable provisions of the 1940 Act. To the
extent that the applicable laws of the State of New York, or any of the
provisions of this Agreement, conflict with the applicable provisions of the
1940 Act or the rules and regulations thereunder, the latter shall control. The
parties expressly acknowledge that the obligations of the Trust are not binding
upon any of the Trustees, shareholders, officers, agents or employees of the
Trust personally, but bind only the trust property of the Trust.
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13. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
14. Confidentiality/ Privacy.
Administrator shall keep confidential all books and records relating
to the Funds and their shareholders, except when (i) disclosure is required by
law, (ii) Administrator is advised by counsel that it may incur liability for
failure to make a disclosure, (iii) Administrator is requested to divulge such
information by duly-constituted authorities or court process, (iv) Administrator
is requested to make a disclosure by a shareholder or shareholder's agent with
respect to information concerning an account as to which such shareholder has
either a legal or beneficial interest and a legal right to such information at
such time consistent with the Trust's Declaration of Trust, Prospectus and
applicable law, or (v) as requested or authorized by the President of the Trust
pursuant to its policies and procedures approved by the Board. Administrator
shall provide the Trust with reasonable advance notice of disclosure pursuant to
items (i) - (iii) of the previous sentence.
Administrator acknowledges that nonpublic personal financial
information relating to consumers or customers of the Trust provided by or at
the direction of the Trust to Administrator, or collected or retained by
Administrator to perform its duties as administrator of the Funds shall be
considered confidential information. Administrator shall not give, sell or in
any way transfer such confidential information to any person or entity, except
at the direction of Trust or as required or permitted by law. Administrator
shall have in place and maintain physical, electronic and procedural safeguards
reasonably designed to protect the security, confidentiality and integrity of,
and to prevent unauthorized access to or use of records and information relating
to consumers or customers of the Trust. Administrator acknowledges and agrees to
comply with the Trust's Statement of its privacy policies and practices as
required by Securities and Exchange Commission Regulation S-P.
15. Force Majeure
Administrator shall maintain at its expense adequate and reliable
computer and other equipment necessary or appropriate to carry out its
obligations under this Agreement. Upon the Trust's reasonable request,
Administrator shall provide supplemental information concerning the aspects of
its disaster recovery and business continuity plan that are relevant to the
services provided hereunder. Notwithstanding the foregoing or any other
provision of this Agreement, Administrator assumes no responsibility and shall
not be liable hereunder for any damage, loss of data, delay or any other loss
whatsoever caused by events beyond its reasonable control. Neither party to this
Agreement will be responsible or liable for its failure or delay in performance
of its obligations under this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond its control, including, without limitation:
any interruption, loss or malfunction of any utility, any transportation
service, the Internet, the World Wide Web,
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or any other public technology infrastructure; inability to obtain
transportation or a delay in mails; governmental or securities exchange action,
statute, ordinance, rulings, regulations or direction; war, terrorism, strike,
riot, emergency, civil disturbance, vandalism, explosions, freezes, floods,
fires, tornadoes, hurricanes, acts of God or public enemy, revolutions, or
insurrection.
Administrator shall provide the Trust, at such times as the Trust may
reasonably require, copies of reports rendered by independent public accountants
on the internal controls and procedures of Administrator relating to the
Services.
16. Prior Agreements
This Agreement constitutes the complete agreement of the parties
hereto as to the subject matter covered by this Agreement, and supersedes all
prior negotiations, understandings and agreements bearing upon the subject
matter covered by this Agreement.
17. Representations and Warranties
Each party hereby represents and warrants to the others that:
(a) It is a corporation or trust, as the case may be, duly
incorporated or formed and validly existing under the laws of the jurisdiction
of its formation, and has full capacity and authority to enter into this
Agreement and to carry out its obligations hereunder;
(b) It has all necessary authorizations, licenses and permits to carry
out its business as currently conducted;
(c) It is in compliance in all material respects with all laws and
regulations applicable to its business and operations; and
(d) This Agreement has been duly authorized by it and, when executed
and delivered by it, will constitute its legal, valid and binding obligation,
enforceable against it in accordance with the terms hereof, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the right and remedies of creditors and secured parties.
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IN WITNESS WHEREOF, the parties to this Agreement have executed and
delivered this Agreement as of the day and year first above written.
Bank of Hawaii
By: /s/ Xxxxxxx Xxx
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Name: Xxxxxxx Xxx
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Title: Assistant Vice President
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Pacific Capital Funds
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: President
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SCHEDULE A
SERVICES
1. Provide oversight with respect to the management of expense accruals,
expense allocations, budgeting and periodic review thereof;
2. Serve as liaison with the Adviser and assist in the preparation and review
of: (i) the annual update to the Trust's registration statement on Form
N-1A, and (ii) other amendments to the Trust's registration statement and
supplements to its Prospectus and Statement of Additional Information;
3. Serve as liaison with the Adviser and assist in the preparation and review
of drafts of communications to shareholders of record of the Funds
("Shareholders"), including without limitation the annual and semi-annual
reports to Shareholders, prospectuses, supplements, proxy materials,
notices of annual and special meetings of shareholders, meeting scripts
related to such meetings and other reports;
4. Assist with the layout and printing of prospectuses and assist with and
coordinate layout and printing of the Funds' semi-annual and annual reports
to Shareholders, prospectuses, prospectus supplements, and proxy
statements;
5. Assist in the preparation of compliance filings pursuant to state
securities laws with the advice of the Trust's counsel and coordinate with
the transfer agent to monitor the sale of the Funds' shares;
6. Review the design, development, and operation of the Funds, and serve as
liaison with the Adviser and coordinate the review of all legal and
operational aspects of proposed changes including the addition of new
funds, fund mergers, acquisitions, or liquidations, new share classes,
changes in investment objectives, policies and structure; and coordinate
activities among Adviser and external service providers related to new
funds, fund mergers, acquisitions, or liquidations, new share classes,
changes in investment objectives, policies and structure;
7. Make available appropriate individuals to serve as officers of the Trust,
upon designation as such by the Board, including officers serving in
executive capacities subject to the provisions of Schedule C to this
Agreement;
8. Review, examine, monitor and act as liaison with respect to the operations
and performance of the various organizations providing services to the
Trust or any Fund, including, without limitation, the investment advisers,
distributor, custodian, fund accountant, transfer agent, outside legal
counsel and independent public accountants, and at the request of the
Board, report to the Board on the performance of such organizations,
and negotiate, coordinate and facilitate execution of Trust's agreements
with primary service providers and submit the same for review by the Trust
and its counsel;
9. Provide Board meeting support by: (i) scheduling and hosting meetings,
including special meetings as necessary, (ii) reviewing Board agendas,
resolutions, minutes, reports, and memoranda provided by other service
providers, (iii) assisting in the production of materials for Board
meetings, including providing the relevant sections of the Board materials
pertaining to the responsibilities of the Administrator, and coordinating
the production of materials pertaining to the responsibilities of the
Adviser, (iv) coordinating special materials related to annual contract
approvals and approval of rule 12b-1 plans and related matters, and (v)
performing such other Board meeting functions as agreed by the parties;
10. Review and coordinate changes in Trust policies and procedures;
11. Perform necessary administrative services and functions of the Trust and
each Fund to the extent administrative services and functions are not
provided to the Trust or such Fund pursuant to the Trust's or such Fund's
sub-administration agreement, investment advisory agreement, distribution
agreement, custodian agreement, transfer agent agreement or fund accounting
agreement;
12. Review, analyze, and furnish advice and recommendations with respect to
other aspects of the business and affairs of the Funds as the Trust shall
determine desirable;
13. Provide assistance to the Trust with respect to matters governed by or
related to regulatory requirements and developments including: monitoring
regulatory and legislative developments which may affect the Trust, and
coordinating the strategic planning in response thereto; assisting the
Trust by providing on-site personnel in responding to and providing
documents for routine regulatory examinations or investigations; and
coordinating with and taking instructions from counsel to the Trust in
response to such routine or non-routine regulatory matters (the assistance
to be provided with respect to SEC inspections shall include without
limitation (i) rendering advice regarding proposed responses, (ii)
compiling data and other information in response to SEC requests for
information, and (iii) communicating with other service providers to
provide status updates);
14. Maintain and support the Funds' web sites;
15. Coordinate the flow of reports, analyses and ad-hoc information requests to
Administrator personnel; and
16. Certify officer participation in meetings of the Fund DCP Committee (as
defined in Schedule C hereto).
SCHEDULE B
FEES
For the services set forth on Schedule A to this Agreement, the Trust shall
pay to Administrator compensation at an annual rate of 4.0 basis points (.04%)
of the average daily net assets of the Trust. The Trust will pay all such
compensation to Administrator monthly.
The Trust shall also reimburse Administrator for its out-of-pocket expenses
as set forth in Section 3(a) of this Agreement, within thirty (30) days of
receipt of Administrators' invoice therefore, in accordance with the terms of
this Agreement.
SCHEDULE C
PROVISIONS APPLICABLE TO INDIVIDUALS
SERVING IN CERTAIN CAPACITIES
The provisions of this Schedule C apply only if Administrator makes
available appropriate individuals to serve as officers of the Trust, upon
designation as such by the Board, to serve in ministerial capacities related to
services provided by Administrator as determined by the Board, or to serve in
executive capacities of the Trust.
To assist the Trust in connection with its obligations under Sections 302
and 906 of the Sarbanes Oxley Act of 2002 and Rule 30a-2 under the 1940 Act
(collectively, with such other related regulatory provisions applicable to the
Trust, "Xxxxxxxx-Xxxxx"), Administrator will internally establish and maintain
controls and procedures ("Administrator internal controls") designed to ensure
that information recorded, processed, summarized, or reported by Administrator
and its affiliates on behalf of the Trust and included in financial information
certified by Trust officers ("Certifying Officers") on Form N-CSR and Form N-Q
("Reports") is (a) recorded, processed, summarized, and reported by
Administrator within the time periods specified in the Commission's rules and
forms and the corresponding disclosure controls and procedures of the Funds,
which may be disclosure controls and procedures provided by Administrator ("Fund
DCPs"), and (b) accumulated and communicated to the relevant Certifying Officers
consistent with the Fund DCPs. In addition, Administrator internal controls will
be designed to ensure that information recorded, processed, summarized, or
reported by Administrator and its affiliates on behalf of the Trust and included
in financial information certified by Trust officers is prepared in accordance
with generally accepted accounting principles and the internal controls over
financial reporting of the Funds ("Fund ICFRs")
If requested by Certifying Officers with respect to a fiscal period during
which Administrator serves or served as financial administrator, Administrator
will provide a sub-certification consistent with the requirements of
Xxxxxxxx-Xxxxx pertaining to Administrator's services. In rendering such
sub-certifications concerning Fund Reports, Administrator may (a) limit its
representations to information prepared, processed and reported by
Administrator; (b) rely upon and assume the accuracy of the information provided
by officers and other authorized agents of the Funds, including any other
service providers to the Funds (other than Administrator and its affiliates) and
compliance by such officers and agents with the Fund DCPs and Fund ICFRs,
including but not limited to, the investment advisers and each Fund's custodian;
and (c) assume that the Trust has selected the appropriate accounting policies
for the Funds.
The Trust shall assist and cooperate with Administrator (and shall cause
its officers, investment advisers and other service providers to assist and
cooperate with Administrator) to facilitate the delivery of information
requested by Administrator in connection with the preparation of the Trust's
Form N-CSR and Form N-Q, including Fund financial statements, so that
Administrator may submit a draft Report to the Trust's Disclosure Controls and
Procedures Committee ("Fund DCP Committee") prior to the date the relevant
Report is to be filed. The relevant Certifying Officers and the Chief Legal
Officer, if any, of the Fund shall be deemed to
constitute the Fund DCP Committee in cases in which no other Fund DCP Committee
has been designated or is operative. In connection with its review and
evaluations, the Fund DCP Committee shall establish a schedule to ensure that
all required disclosures in Form N-CSR and Form N-Q and in the financial
statements for the Funds are identified and prepared in a timeframe sufficient
to allow review by the Fund DCP Committee. At the request of the Trust or its
Certifying Officers, Administrator shall provide reasonable administrative
assistance to the Trust in connection with obtaining service provider
sub-certifications and SAS-70 reports on internal controls, and any applicable
representations to bring such certifications current to end of the reporting
period, and in preparing summaries of issues raised in such documents.
The Administrator recognizes the Trust's obligation to comply with
Xxxxxxxx-Xxxxx. Without limitation of the foregoing, the Trust shall maintain
responsibility for, and shall support and facilitate the role of each Certifying
Officer and the Fund DCP Committee in, designing and maintaining the Fund DCPs
in accordance with applicable laws, including (a) ensuring that the Fund DCP
Committee and/or Certifying Officers obtain and review sub-certifications and
reports on internal controls from the Fund's investment adviser(s) and other
service providers, if any, sufficiently in advance of the date upon which the
relevant financial statements must be finalized by Administrator (in order to
print, distribute and/or file the same), (b) evaluating the effectiveness of the
design and operation of the Fund DCP with (at the Trust's election) the
participation of the Certifying Officers, within the requisite timeframe prior
to the filing of each Report and (c) ensuring that Certifying Officers render
the requisite certifications or take such other actions as may be permitted or
required under applicable laws.
The Trust agrees and acknowledges that Administrator policies are
applicable to the service of any Administrator employee as a Certifying Officer
or as Chief Legal Officer, if any, of the Trust (an "Employee/Executive
Officer"), and that to the extent this service is rendered by Administrator it
is limited, in each case, to providing an Employee/Executive Officer who, in the
exercise of his or her duties to the Trust, shall act in good faith and in a
manner reasonably believed by him or her to be in the best interests of the
Trust. Administrator shall select, and may replace, the specific employee that
it makes available to serve in the designated capacity as an Employee/Executive
Officer, in Administrator's reasonable discretion, taking into account such
person's responsibilities concerning, and familiarity with, the Trust's
operations; provided, however, that no such employee shall serve as an officer
of the Trust until approved and appointed by the Board of Trustees of the Trust.
Administrator 's provision of each Employee/Executive Officer is also
subject to, and conditioned upon, the following:
(a) The Fund DCPs shall contain (or the Trust and Administrator shall otherwise
establish) mutually agreeable procedures governing the certification process,
and the parties shall comply with such procedures in all material respects.
Among other things, the procedures shall provide as follows:
(i) The Trust shall establish and maintain a Fund DCP Committee comprised
of persons including (at a minimum) the Company's Principal Executive Officer,
Chief Financial
Officer and Chief Legal Officer, if any, and such other individuals as may be
reasonably necessary or appropriate for the Fund DCP Committee to ensure the
cooperation of, and to oversee, each of the Trust's agents that records,
processes, summarizes, or reports information contained in Fund Reports (or
other information from which such information is derived), including the
investment adviser(s), sub-adviser(s) and custodian (each, a "Service
Provider"). In connection therewith, the Fund DCP Committee shall assist the
Certifying Officers by requiring that sub-certifications acceptable to the
Certifying Officers be provided by Service Providers.
(ii) The Fund DCP Committee shall meet prior to the filing date of each
Report to review the accuracy and completeness of the relevant Report, and shall
record its considerations and conclusions in a written memorandum sufficient to
support conclusions pertaining to Fund DCPs as required by the instructions to
Form N-CSR and Form N-Q. In conducting its review and evaluations, the Fund DCP
Committee shall:
(A) establish a schedule to ensure that all required disclosures in
Form N-CSR and Form N-Q, including the financial statements, for the Trust are
identified and prepared in a timeframe sufficient to allow review;
(B) review SAS 70 Reports pertaining to Service Providers, if
applicable, or in the absence of any such reports, consider the adequacy of a
sub-certification of the Service Provider and, in cases where the SAS 70 report
is dated more than 90 days prior to the issuance of a Report, the DCP Committee
shall request a written representation from the Service Provider regarding the
continued application and effectiveness of internal controls described in the
report, or descriptions of any changes in internal control structure, as of the
date of the representation;
(C) consider whether there are any significant deficiencies or
material weaknesses in the design or operation of the Fund DCPs and internal
controls over financial reporting that could adversely affect a Trusts's ability
to record, process, summarize, and report financial information, and in the
event that any such deficiencies or weaknesses are identified, disclose them to
the Trusts's Certifying Officers, the Trusts's audit committee and its auditors;
(D) consider whether, to the knowledge of each member of the Fund DCP
Committee, there has been or may have been any fraud, whether or not material,
and in the event that any such occurrence is identified, ensure that this has
been disclosed to the Certifying Officers and Chief Legal Officer, if any
(collectively, the "Executive Officers"), so that the Executive Officers may
inform the Trusts's audit committee and its auditors; and
(E) determine whether there were significant changes in internal
control over financial reporting that occurred during the Trust's most recent
fiscal quarter that have materially affected or are reasonably likely to
materially affect the Trust's internal control over financial reporting.
(b) The Trust's governing documents (such as its Agreement and Declaration of
Trust and By-Laws) and/or resolutions of its Board shall contain mandatory
indemnification provisions
that are applicable to each Employee/Executive Officer, and which are intended
to have the effect of fully indemnifying him or her and holding him or her
harmless with respect to any claims, liabilities and costs arising out of or
relating to his or her service as an Employee/Executive Officer in good faith in
a manner reasonably believed to be in the best interests of the Trust, except to
the extent he or she would otherwise be liable to the Trust by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his office, within the meaning of Section 17(h) of
the 1940 Act.
(c) The Trust shall provide coverage to each Employee/Executive Officer under
its directors and officers liability policy that is appropriate to the
Employee/Executive Officer's role and title, and that is consistent with
coverage applicable to other executive management-level officers.
(d) An Employee/Executive Officer that serves as a Certifying Officer shall have
the full discretion to decline to certify a particular Report that fails to meet
the standards set forth in the Certification, to report matters involving fraud
or other failure to meet the standards of applicable law to the audit committee
of the Board, or in appropriate circumstances, to resign from his or her
position, in the event that he or she reasonably determines that there has been
or is likely to be (1) a material deviation from the Administrator policies, (2)
a violation of Xxxxxxxx-Xxxxx or other applicable laws, or (3) a material
deviation by the Trust from the terms of this Agreement governing the services
of such Certifying Officer that is not caused by such Certifying Officer or
Administrator.
(e) Each Employee/Executive Officer that serves as a Certifying Officer may, and
the Trust shall, promptly notify Administrator of any issue, matter or event
that would be reasonably likely to result in any claim by the Trust, the Trust's
shareholders or any third party which involves an allegation that any Report
failed to meet the standards of applicable laws or that any of the Trust's
Certifying Officers failed to exercise their obligations to the Trust in a
manner consistent with Xxxxxxxx-Xxxxx and other applicable laws.
(f) Notwithstanding any provision of this Agreement that expressly or by
implication provides to the contrary, (a) it is expressly agreed and
acknowledged that Administrator cannot ensure that the Trust complies with
Xxxxxxxx-Xxxxx, and (b) if an Administrator employee serves as an Executive
Officer of the Trust, as long as such Executive Officer acts in good faith and
in a manner reasonably believed to be in the best interests of the Trust (and
such Executive Officer would not otherwise be liable to the Trust by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office and the Administrator would
not otherwise be liable to the Trust by reason of Administrator's negligence,
bad faith, willful misfeasance or reckless disregard of its obligations under
this Agreement), the Trust shall indemnify the Executive Officer and
Administrator and hold the Executive Officer and Administrator harmless from any
loss, liability, expenses (including reasonable attorneys fees) and damages
incurred by them arising out of or resulting from the service of such
Employee/Executive Officer as a Certifying Officer or other executive officer of
the Trust.
