ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT (this "Agreement") is made as of the
17th day of September, 2015 (the "Effective Date"), by and between Gallery
Trust, a Delaware statutory trust (the "Trust"), Mondrian Investment Partners
Limited (the "Investment Adviser") and SEI Investments Global Funds Services, a
statutory trust formed under the laws of the State of Delaware (the
"Administrator").
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of the series portfolios set forth in Schedule I, attached
hereto, as the same may be amended from time to time ("Portfolios"), each of
which may consist of one or more classes of shares of beneficial interest
("Shares"); and
WHEREAS, the Trust desires the Administrator to provide, and the
Administrator is willing to provide, administrative and accounting services to
such Portfolios of the Trust on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Trust and the Administrator hereby agree as
follows:
SECTION 1 DEFINITIONS
1.01 "1940 Act" shall have the meaning given to such term in the preamble
of this Agreement.
1.02 "Actions" shall have the meaning given to such term in Section
3.01.02.
1.03 "Administrator" shall have the meaning given to such term in the
preamble of this Agreement.
1.04 "Agreement" shall have the meaning given to such term in the preamble
of this Agreement.
1.05 "Board" means board of trustees of the Trust from time to time.
1.06 "Confidential Information" shall have the meaning given to such term
in Section 11.01 of this Agreement.
1.07 "Disclosing Party" shall have the meaning given to such term in
Section 11.01 of this Agreement.
1.08 "Initial Term" shall have the meaning given to such term in Section
9.01 of this Agreement.
1.09 "Interested Party" or "Interested Parties" means the Administrator,
its subsidiaries and its affiliates and each of their respective
officers, directors, employees, agents, delegates and associates.
1.10 "Interests" means any partnership interest in, membership interest
in, shares of stock of or other equity interest in, as the case may
be, the Trust.
1.11 "Investments" shall mean such cash, securities and all other assets
and property of whatsoever nature now owned or subsequently acquired
by or for the account of the Trust.
Gallery Trust Administration Agreement
SEI -- 198697v1
THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS GLOBAL
FUNDS SERVICES
1.12 "Liquidation" shall have the meaning given to such term in Section
9.02.02 of this Agreement.
1.13 "Live Date" means, with respect to any Portfolio, the date on which
such Portfolio is launched onto the Administrator's system and the
Administrator begins calculating the Portfolio's official net asset
values ("NAV").
1.14 "Organizational Documents" means, as applicable, the articles of
incorporation, declaration of trust, certificate of formation,
memorandum of association, partnership agreement, bylaws or other
similar documentation setting forth the respective rights and
obligations of directors, managers and Interest holders in the Trust.
1.15 "Person" shall mean any natural person, partnership, estate,
association, custodian, nominee, limited liability company,
corporation, trust or other legal entity.
1.16 "Pricing Sources" shall have the meaning given to such term in
Section 6 of this Agreement.
1.17 "Proprietary Information" shall have the meaning given to such term
in Section 12.01 of this Agreement.
1.18 "Portfolio" shall have the meaning given to such term in the preamble
of this Agreement.
1.19 "Reasonable Steps" shall have the meaning given to such term in
Section 11.01 of this Agreement.
1.20 "Receiving Party" shall have the meaning given to such term in
Section 11.01 of this Agreement.
1.21 "Regulations" shall have the meaning given to such term in Section
12.12 of this Agreement.
1.22 "Renewal Term" shall have the meaning given to such term in Section
9.01 of this Agreement.
1.23 "Shares" shall have the meaning given to such term in the preamble of
this Agreement.
1.24 "Trust Data" shall have the meaning given to such term in Section
2.04 of this Agreement.
1.25 "Trust Materials" means any prospectus, registration statement,
statement of additional information, proxy solicitation and tender
offer materials, annual or other periodic report of the Trust or any
advertising, marketing, shareholder communication, or promotional
material generated by the Trust or the Investment Adviser from time to
time, as appropriate, including all amendments or supplements thereto.
1.26 "Web Access" shall have the meaning given to such term in Section
12.01 of this Agreement.
SECTION 2 APPOINTMENT AND CONTROL
2.01 Services. The Trust hereby appoints the Administrator to be, and the
Administrator agrees to act as, the administrative agent of the Trust
for the term and subject to the provisions hereof. The Administrator
shall perform (and may delegate or sub-contract, as provided below)
the services set forth in this Agreement, including the services set
forth
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in Schedule II, which may be amended from time to time in writing by
the parties ("Services"). In performing its duties under this
Agreement, the Administrator will act in all material respects in
accordance with the Trust's Organizational Documents and Trust
Materials as they may be amended (provided copies are delivered to the
Administrator).
2.02 Authority. Each of the activities engaged in under the provisions of
this Agreement by the Administrator on behalf of Trust shall be
subject to the overall direction and control of the Trust or any
Person authorized to act on the Trust's behalf (including, without
limitation, the Board); provided, however, that the Administrator
shall have the general authority to do all acts deemed in the
Administrator's good faith belief to be necessary and proper to
perform its obligations under this Agreement. In performing its duties
hereunder, the Administrator shall observe and generally comply with
the Trust Materials, all applicable resolutions and/or directives of
the Board of which it has notice, and applicable laws and regulations
which may from time to time apply to the Services rendered by the
Administrator. In the event that the Trust desires to amend its
Organizational Documents in any manner that can reasonably be expected
to have a material impact on the Administrator's performance of the
Services hereunder, the Trust shall notify the Administrator in
advance of such amendment and the parties will work together in good
faith to minimize the impact of such change on the Administrator's
operations and compensate the Administrator in connection therewith.
The Administrator (i) shall not have or be required to have any
authority to supervise the investment or reinvestment of the
securities or other properties which comprise the assets of the Trust
and (ii) shall not provide any investment advisory services to the
Trust, and shall have no liability related to the foregoing.
2.03 Third Parties; Affiliates. The Administrator may delegate to, or
sub-contract with, third parties or affiliates administrative or other
functions it deems necessary to perform its obligations under this
Agreement; provided, however, all fees and expenses incurred in any
delegation or sub-contract shall be paid by the Administrator and the
Administrator shall remain responsible to the Trust for the acts and
omissions of such other entities as if such acts or omissions were the
acts or omissions of the Administrator. The Trust acknowledges that
during the term of this Agreement, the services to be performed by the
Administrator may be completed by one or more of the Administrator's
affiliates or third parties located in or outside of the United States
of America.
2.04 Trust Data. The Trust shall be solely responsible for the accuracy,
completeness, and timeliness of all data and other information
provided to the Administrator by or on behalf of the Trust pursuant to
this Agreement (including, without limitation, (i) prices, (ii)
transaction supporting documentation, (iii) detailed accounting
methodologies with respect to the Trust's Investments as approved by
the Trust's auditors, (iv) trade and settlement information from prime
brokers and custodians) and (v) Portfolio information provided
directly or indirectly by the Trust's sponsor (collectively, "Trust
Data"). All Trust Data shall be provided to the Administrator on a
timely basis and in a format and medium reasonably requested by the
Administrator from time to time. The Trust shall have an ongoing
obligation to promptly update all Trust Data so that such information
remains complete and accurate. All Trust Data shall be prepared and
maintained, by or on behalf of the Trust, in accordance with
applicable law, Trust Materials and generally acceptable accounting
principles. The Administrator shall be entitled to rely on all Trust
Data and shall have no liability for any loss, damage or expense
incurred by the Trust or any other Person to the extent that such
loss, damage or expense arises out of or is related to Trust Data that
is not timely, current, complete and accurate.
SECTION 3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRUST
3.01 Trust represents and warrants that:
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3.01.01. it has full power, right and authority to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby; the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly approved by all requisite actions on its part,
and no other proceedings on its part are necessary to approve
this Agreement or to consummate the transactions contemplated
hereby; this Agreement has been duly executed and delivered by
it; this Agreement constitutes a legal, valid and binding
obligation, enforceable against it in accordance with its terms;
3.01.02. it is not a party to any, and there are no, pending or
threatened legal, administrative, arbitral or other proceedings,
claims, actions or governmental or regulatory investigations or
inquiries (collectively, "Actions") of any nature against it or
its properties or assets which could, individually or in the
aggregate, have a material effect upon its business or financial
condition. There is no injunction, order, judgment, decree, or
regulatory restriction imposed specifically upon it or any of its
properties or assets;
3.01.03. no existing Interest holder is a designated national and/or
blocked person as identified on the Office of Foreign Assets
Control's list maintained by the U.S. Department of Treasury
(found at xxxx://xxx.xxxxx.xxx.xxxx) or any other relevant
regulatory or law enforcement agencies, as applicable to the
Fund.
3.01.04. it is not in default under any contractual or statutory
obligations whatsoever (including the payment of any tax) which,
individually or in the aggregate, could materially and adversely
affect, or is likely to materially and adversely affect, its
business or financial condition;
3.01.05. it has obtained all consents and given all notices
(regulatory or otherwise), made all required regulatory filings
and is in compliance with all applicable laws and regulations;
3.01.06. it has or will have prior to issuance of any shares a valid
engagement with an independent auditor and will provide
additional information regarding such independent auditor,
including information regarding the terms of its agreement with
such independent auditor, upon request;
3.01.07. as of the close of business on the Effective Date, each
Portfolio that is in existence as of the Effective Date has
authorized or will authorize the issuance of an indefinite number
of shares and has elected or will elect to register an indefinite
number of shares in accordance with Rule 24f-2 under the 1940
Act;
3.01.09. it has notified the Administrator of any and all separate
agreements between the Trust and any third party that could have
a material impact on the Administrator's performance of its
obligations pursuant to this Agreement.
3.02 Trust covenants and agrees that:
3.02.01. it will furnish the Administrator from time to time with
complete copies, authenticated or certified (where applicable),
of each of the following:
(a) Copies of the following documents:
(1) Copies of the Trust's current Declaration of Trust and
of any amendments thereto, certified by the proper
official of the state in
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which such document has been filed
(2) Trust's current bylaws and any amendments thereto; and
(3) Copies of resolutions of the Board covering the
approval of this Agreement, authorization of a
specified officer of the Trust to execute and deliver
this Agreement and authorization for specified officers
of the Trust to instruct the Administrator.
(b) A list of all the officers of the Trust, together with
specimen signatures of those officers who are authorized to
instruct the Administrator in all matters.
(c) Copies of all Trust Materials, including the current
prospectus and statement of additional information for each
Portfolio.
(d) A list of all issuers the Portfolios are restricted from
purchasing.
(e) A list of all affiliated persons (as such term is defined
in the 0000 Xxx) of the Trust that are broker-dealers.
(f) The identity of the Trust's independent auditor along with
contact information.
(g) The expense budget for each Portfolio for the current fiscal
year.
(h) A list of contact persons (primary, backup and secondary
backup) of the Trust's Investment Adviser and, if
applicable, sub-adviser, who can be reached until 6:30 p.m.
ET with respect to valuation matters.
(i) Copies of all Trust Data reasonably requested by the
Administrator or necessary for the Administrator to perform
its obligations pursuant to this Agreement.
The Trust shall as soon as reasonably practicable provide the
Administrator with written notice of any updates of or changes to
any of the foregoing documents or information, including an
updated written copy of such document or information. Until the
Administrator receives such updated information or document, the
Administrator shall have no obligation to implement or rely upon
such updated information or document.
3.02.02. it shall timely perform or oversee the performance of all
obligations identified in this Agreement as obligations of the
Trust, including, without limitation, providing the Administrator
with all Trust Data and Organizational Documents reasonably
requested by the Administrator;
3.02.03. it will notify the Administrator as soon as reasonably
practical in advance of any matter which could materially affect
the Administrator's performance of its duties and obligations
under this Agreement, including any amendment to the documents
referenced in Section 3.02.01 above;
3.02.04. it will comply in all material respects with all applicable
requirements of the Securities Act of 1933, the Securities
Exchange Act of 1934, the 1940 Act, and any applicable laws,
rules and regulations of governmental authorities having
jurisdiction;
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3.02.05. any reference to the Administrator or this Agreement in the Trust
Materials shall be limited solely to the description provided by the
Administrator in writing from time to time or such other description
as the parties shall mutually agree in advance and in writing;
3.02.06. it shall be solely responsible for its compliance with applicable
investment policies, the Trust Materials, and any laws and regulations
governing the manner in which its assets may be invested, and shall be
solely responsible for any losses attributable to non-compliance with
the Trust Materials, and applicable policies, laws and regulations
governing the Trust, its activities or the duties, actions or
omissions of the investment manager; and
3.02.07. it will as soon as reasonably practicable notify the Administrator
of updates to its representations and warranties hereunder.
SECTION 4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ADMINISTRATOR
4.01 The Administrator represents and warrants that:
4.01.01. it has full power, right and authority to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby; the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly approved by all requisite action on its part,
and no other proceedings on its part are necessary to approve
this Agreement or to consummate the transactions contemplated
hereby; this Agreement has been duly executed and delivered by
it; this Agreement constitutes a legal, valid and binding
obligation, enforceable against it in accordance with its terms.
4.01.02. it is not a party to any, and there are no, pending or
threatened Actions of any nature against it or its properties or
assets which could, individually or in the aggregate, have a
material effect upon its business or financial condition. There
is no injunction, order, judgment, decree, or regulatory
restriction imposed specifically upon it or any of its properties
or assets.
4.01.03. it is not in default under any statutory obligations
whatsoever (including the payment of any tax) which materially
and adversely affects, or is likely to materially and adversely
affect, its business or financial condition.
4.02 The Administrator covenants and agrees that:
4.02.01. it will make available to the Trust, upon reasonable request
in the ordinary course of business, such books and records of any
Portfolio that are maintained under this Agreement and reasonably
available for review, and will furnish to regulatory authorities
having the requisite authority any such books and records and any
information or reports in connection with the Administrator's services
under this Agreement that may be requested in order to ascertain
whether the operations of the Trust are being conducted in a manner
consistent with applicable laws and regulations.
SECTION 5 LIMITATION OF LIABILITY AND INDEMNIFICATION
5.01 THE DUTIES OF THE ADMINISTRATOR SHALL BE CONFINED TO THOSE EXPRESSLY
SET FORTH IN THIS AGREEMENT, AND NO IMPLIED DUTIES ARE ASSUMED BY OR
MAY BE ASSERTED AGAINST THE ADMINISTRATOR. EXCEPT
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TO THE EXTENT ARISING OUT OF THE ADMINISTRATOR'S BAD FAITH, FRAUD, OR
CRIMINAL MISCONDUCT WHEN PROVIDING THE SERVICES UNDER THIS AGREEMENT,
THE ADMINISTRATOR'S AGGREGATE LIABILITY TO THE TRUST WILL BE LIMITED
TO MONETARY DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID HEREUNDER
DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO
THE FIRST SUCH CLAIM TO OCCUR. For the avoidance of doubt, the
Administrator shall not be responsible for any breach in the
performance of its obligations under this Agreement due to (i) the
failure or delay of the Trust or its agents to perform its obligations
under this Agreement or (ii) the Administrator's reliance on Trust
Data. Each party shall have the duty to mitigate its damages for which
another party may become responsible. As used in this Section 5, the
term "Administrator" shall include the officers, directors, employees,
affiliates and agents of the Administrator as well as that entity
itself. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL THE ADMINISTRATOR BE LIABLE FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR OTHER
NON-DIRECT DAMAGES OF ANY KIND WHETHER SUCH LIABILITY IS PREDICATED ON
CONTRACT, STRICT LIABILITY, OR ANY OTHER THEORY AND REGARDLESS OF
WHETHER THE TRUST IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
5.02 The Administrator may, from time to time, provide to the Trust
services and products ("Special Third Party Services") from external
third party sources that are telecommunication carriers, Pricing
Sources, data feed providers or other similar service providers
("Special Third Party Vendors"). The Trust acknowledges and agrees
that the Special Third Party Services are confidential and proprietary
trade secrets of the Special Third Party Vendors. Accordingly, the
Trust shall honor requests by the Administrator and the Special Third
Party Vendors to protect their proprietary rights in their data,
information and property including requests that the Trust place
copyright notices or other proprietary legends on printed matter,
print outs, tapes, disks, film or any other medium of dissemination.
The Trust further acknowledges and agrees that all Special Third Party
Services are provided on an "AS IS WITH ALL FAULTS" basis solely for
such Trust's internal use, and as an aid in connection with the
receipt of the Services. The Trust may use Special Third Party
Services as normally required on view-only screens and hard copy
statements, reports and other documents necessary to support the
Trust's investors, however the Trust shall not distribute any Special
Third Party Services to other third parties. THE SPECIAL THIRD PARTY
VENDORS AND THE ADMINISTRATOR MAKE NO WARRANTIES, EXPRESS OR IMPLIED,
AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR ANY OTHER
MATTER WITH RESPECT TO ANY OF THE SPECIAL THIRD PARTY SERVICES.
NEITHER THE ADMINISTRATOR NOR THE SPECIAL THIRD PARTY VENDORS SHALL BE
LIABLE FOR ANY DAMAGES SUFFERED BY THE TRUST IN THE USE OF ANY OF THE
SPECIAL THIRD PARTY SERVICES, INCLUDING, WITHOUT LIMITATION, LIABILITY
FOR ANY INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES.
5.03 The Trust shall indemnify, defend and hold harmless the Administrator
from and against and the Administrator shall have no liability in
connection with 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: (i) any act or
omission of the Administrator in carrying out its duties hereunder or
as a result of the Administrator's reliance upon any instructions,
notice or instrument that the Administrator reasonably believes is
genuine and signed or presented by an authorized Person of the Trust;
(ii) any violation by the Trust or any agent of the Trust of any
applicable investment policy, law or regulation, (iii) any
misstatement or omission in the Trust Materials or any Trust Data;
(iv) any breach by the Trust of any representation, warranty or
agreement contained in this Agreement; (v) any act or
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omission of the Trust, a Special Third Party Vendor, the Trust's other
service providers (such as custodians, prime brokers, transfer agents,
the Investment Adviser and sub- advisers); (vi) any pricing error
caused by the failure of the Trust's Investment Adviser or sub-adviser
to provide a trade ticket or for incorrect information included in any
trade ticket; or (vii) any act or omission of the Administrator as a
result of the Administrator's compliance with the Regulations,
including, but not limited to, returning an investor's Investment or
restricting the payment of redemption proceeds; PROVIDED THAT the
indemnification under this Section 5.03 shall not apply to the extent
any such loss, damage or expense is caused by the Administrator's bad
faith, fraud or criminal conduct in the performance of the Services
under this Agreement.
5.04 The Administrator may apply to the Trust, the Trust's sponsor or any
Person acting on the Trust's behalf at any time for instructions and
may consult counsel for the Trust or the Trust's sponsor or with
accountants, counsel and other experts with respect to any matter
arising in connection with the Administrator's duties hereunder, and
the Administrator shall not be liable or accountable for any action
taken or omitted by it in good faith in accordance with such
instruction or with the advice of the Trust's counsel, accountants or
other experts. Also, the Administrator shall not be liable for actions
taken pursuant to any document which it reasonably believes to be
genuine and to have been signed by the proper Person or Persons. The
Administrator shall not be held to have notice of any change of
authority of any officer, employee or agent of the Trust until receipt
of written notice thereof. To the extent that the Administrator
consults with the Trust counsel pursuant to this provision, any such
reasonable expense shall be borne by the Trust.
5.05 The Administrator shall have no liability for its reliance on Trust
Data or the performance or omissions of unaffiliated third parties
such as, by way of example and not limitation, transfer agents,
sub-transfer agents, custodians, prime brokers, placement agents,
third party marketers, asset data service providers, the Investment
Adviser (including, without limitation, the sponsor) or sub-advisers,
current third party service providers, Pricing Sources, software
providers, printers, postal or delivery services, telecommunications
providers and processing and settlement services. The Administrator
may rely on and shall have no duty to investigate or confirm the
accuracy or adequacy of any information provided by any of the
foregoing third parties.
5.06 The Administrator shall have no obligations with respect to any laws
relating to the distribution, purchase or sale of Shares. Further, the
Trust assumes full responsibility for the preparation, contents and
distribution of its Trust Materials and its compliance with any
applicable laws, rules, and regulations.
5.07 The indemnification rights afforded to Administrator hereunder shall
include the right to reasonable advances of defense expenses on an
as-incurred basis in the event of any pending or threatened litigation
or Action with respect to which indemnification hereunder may
ultimately be merited. If in any case the Trust is asked to indemnify
or hold the Administrator harmless, the Administrator shall promptly
advise the Trust of the pertinent facts concerning the situation in
question, and the Administrator will use all reasonable care to
identify and notify the Trust promptly concerning any situation which
presents or appears likely to present the probability of such a claim
for indemnification, but failure to do so shall not affect the rights
hereunder.
5.08 The Trust 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 Trust elects to
assume the defense of any such claim, the defense shall be conducted
by counsel chosen by the Trust and satisfactory to the Administrator,
whose approval shall not be unreasonably withheld. In the event that
the Trust elects to assume the defense of any suit and retain counsel,
the Administrator shall bear the fees and expenses of any additional
counsel retained by it. If the Trust does not elect to assume
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the defense of a suit, it will advance to the Administrator the fees
and expenses of any counsel retained by the Administrator as such
expenses are incurred by the Administrator. None of the parties hereto
shall settle or compromise any action, suit, proceeding or claim if
such settlement or compromise provides for an admission of liability
on the part of the indemnified party without such indemnified party's
written consent.
5.09 THE TRUST AND THE ADMINISTRATOR HAVE FREELY AND OPENLY NEGOTIATED
THIS AGREEMENT, INCLUDING THE PRICING, WITH THE KNOWLEDGE THAT THE
LIABILITY OF THE PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE
PROVISIONS OF THIS AGREEMENT.
5.10 The provisions of this Section 5 shall survive the termination of
this Agreement.
SECTION 6 VALUATION
The Administrator is entitled to rely on the price and value information
(hereinafter "Valuation Information") provided by brokers and custodians,
investment advisors (including, without limitation, the sponsor) any
underlying fund in which the Trust invests, if applicable, or any
third-party pricing services selected by the Administrator, the Trust's
investment advisor or the Trust (collectively hereinafter referred to as
the "Pricing Sources") as reasonably necessary in the performance of the
Services. The Administrator shall have no obligation to obtain Valuation
Information from any sources other than the Pricing Sources and may rely on
estimates provided by the Trust's Investment Adviser. The Administrator
shall have no liability or responsibility for the accuracy of the Valuation
Information provided by a Pricing Source or the delegate of a Pricing
Source and the Trust shall indemnify and defend the Administrator against
any loss, damages, costs, charges or reasonable counsel fees and expenses
in connection with any inaccuracy of such Valuation Information. The Trust
shall not use Valuation Information for any purpose other than in
connection with the Services and in accordance with the provisions of this
Agreement.
SECTION 7 ALLOCATION OF CHARGES AND EXPENSES
7.01 The Administrator. The Administrator shall furnish at its own expense
the personnel necessary to perform its obligations under this
Agreement.
7.02 Portfolio Expenses. The Trust assumes and shall pay or cause to be
paid all expenses of the Trust not otherwise allocated in this
Agreement, including, without limitation, organizational costs; taxes;
expenses for legal and auditing services; the expenses of preparing
(including typesetting), printing and mailing reports, Trust
Materials, proxy solicitation and tender offer materials and notices
to existing shareholders; all expenses incurred in connection with
issuing and redeeming Shares; the costs of Pricing Sources; the costs
of loan credit activity data; the costs of escrow and custodial
services; the cost of document retention and archival services, the
costs of responding to document production requests; the cost of
initial and ongoing registration of the Shares under Federal and state
securities laws; costs associated with attempting to locate lost
shareholders; all expenses incurred in connection with any custom
programming or systems modifications required to provide any reports
or services requested by Trust; any expense, if applicable, incurred
to reprint Trust documents identifying the Administrator (along with
its address and telephone number) as Trust's new administrator; costs
associated with DST FanMail or similar reporting service; bank service
charges; NSCC trading charges; fees and out-of-pocket expenses of
trustees; the costs of trustees' meetings; insurance; interest;
brokerage costs; litigation and other extraordinary or nonrecurring
expenses; and all fees and charges of service providers to Trust.
Trust shall reimburse the Administrator for its reasonable costs and
out-of-pocket expenses incurred
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in the performance of the Services, including all reasonable charges
for independent third party audit charges, printing, copying, postage,
telephone, and fax charges incurred by the Administrator in the
performance of its duties.
SECTION 8 COMPENSATION
8.01 Fees. Trust (or the Investment Adviser as applicable) shall pay to
the Administrator compensation for the services performed by the
Administrator pursuant to this Agreement, such fees as set forth in
the written fee schedule annexed hereto as Schedule III and
incorporated herein. The Trust shall have no right of set-off. The
fees set forth herein are determined based on the characteristics of
the each Portfolio as of the Effective Date. Any material change to
the characteristics to a Portfolio may give rise to an adjustment to
the fees set forth in this Agreement. In the event of such a change,
the parties shall negotiate any adjustment to the fees payable
hereunder in good faith provided, however, that if the parties cannot
in good faith agree on such adjustment to the fees within a reasonable
period of time, the Administrator may terminate this Agreement upon
thirty days prior written notice to the Trust. The Administrator is
hereby authorized to, and may, at its option, automatically debit its
fees due from the Trust's Portfolio account(s). The Trust (or
Investment Adviser, as applicable) shall pay the Administrator's fees
monthly in U.S. Dollars, unless otherwise agreed to by the parties.
The Trust (or Investment Adviser, as applicable) shall pay, or cause
to have paid, the foregoing fees despite the existence of any dispute
among the parties. If this Agreement becomes effective subsequent to
the first day of any calendar month or terminates before the last day
of any calendar month, the 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 in
Schedule III. Trust agrees to pay interest on all amounts past due in
an amount equal to the lesser of the maximum amount permitted by
applicable law or the month fee of one and one-half percent (1 1/2 %)
times the amount past due multiplied by the number of whole or partial
months from the date on which such amount was first due up to and
including the day on which payment is received by the Administrator.
8.02 Adjustment of Fees. The Trust acknowledges that from time to time
after the conclusion of the Initial Term (as defined below) and on an
annual basis thereafter, the Annual Minimum Fees payable hereunder
shall be subject to an increase at SEI's discretion, equal to the
percentage increase in the Philadelphia Consumer Price Index since the
Effective Date with respect to the first such increase, and since the
date of the immediately preceding increase with respect to all
subsequent increases; provided, however, that the Administrator shall
notify the Trust of its intent to effectuate any such increase at
least one hundred eighty days prior to the effectiveness of such
increase.
Notwithstanding the above, in the event of an increase to
Administrator's costs for Special Third Party Services, Administrator
may at any time upon thirty days written notice increase the Fees
applicable to such Special Third Party Services, provided, that such
fee increase will not exceed the applicable percentage increase in
costs incurred by Administrator with respect to such Special Third
Party Services.
SECTION 9 DURATION AND TERMINATION
9.01 Term and Renewal. This Agreement shall become effective as of the
Effective Date and shall remain in effect for a period of three years
from and after the Live Date of the first Portfolio of the Trust (the
"Initial Term"), and thereafter shall automatically renew for
successive one year terms (each such period, a "Renewal Term") unless
terminated by any party giving written notice of non-renewal at least
one hundred eighty days prior to the last day of the then current term
to each other party hereto.
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9.02 Termination for Cause.
9.02.01. This Agreement may be terminated forthwith by any party
giving notice in writing to the other parties if at anytime the
other party or parties have been first (i) notified in writing
that such party shall have materially failed to perform its
duties and obligations under this Agreement (such notice shall be
of the specific asserted material breach) ("Breach Notice") and
(ii) the party receiving the Breach Notice shall not have
remedied the noticed failure within ninety days after receipt of
the Breach Notice requiring it to be remedied.
9.02.02. This Agreement may be terminated with respect to a particular
Portfolio by any party giving one hundred eighty days prior
notice in writing to the other parties prior to the Liquidation
(as hereinafter defined) of such Portfolio. For purposes of this
Section 9.02.02, the term "Liquidation" shall mean a transaction
in which all the assets of a Fund are sold or otherwise disposed
of and proceeds there from are distributed in cash to the
shareholders in complete liquidation of the interests of
shareholders in such Portfolio. A termination pursuant to this
Section 9.02.02 shall be effective as of the date of such
Liquidation. Notwithstanding the foregoing, the right to
terminate set forth in this Section 9.02.02 shall not relieve
such Fund of its obligation to pay the fees set forth on Schedule
III for the remainder of the one hundred eighty day period set
forth in this Section 9.02.02, which amount shall be payable
prior to the effective date of such liquidation.
9.02.03. This Agreement may be terminated as to any Portfolio, upon
forty-five days prior written notice, effective (i) upon the
reorganization or merger of a Portfolio into another entity,
provided that Administrator or one of its affiliates enters into
a written agreement to provide administration services on behalf
of such surviving entity, or (ii) upon any "change of control" of
the Investment Adviser by sale, merger, reorganization,
acquisition or other disposition of substantially all of the
assets of the Investment Adviser to a third party, provided that
Administrator or one of its affiliates enters into a written
agreement to provide administration services on behalf of the
third party or surviving entity. For purposes of this paragraph,
the term "change of control" shall mean any transaction that
results in the transfer of right, title and ownership of
fifty-one percent or more of the equity interests of the Adviser
to a third party.
9.02.04 Subject to the terms and conditions set forth in this
paragraph, the parties may agree to terminate the Agreement on or
before the expiration of the then current term (hereinafter, an
"Early Termination"). In the event the parties agree to an Early
Termination, the parties will agree upon the effective date of
such Early Termination and, on or before such effective date, the
Investment Adviser and the terminating Portfolio(s) shall not be
in material breach of the Agreement and (ii) Investment Adviser
shall pay the Buyout Amount to SEI in the manner set forth below.
As used herein, the term "Buyout Amount" shall mean the amount
that is equal to (1) the average monthly fee otherwise payable in
respect of the terminating Portfolio(s) hereunder during the six
month period (or such shorter period if fewer than six months
have elapsed since the effective date of the Agreement)
immediately preceding the mutual agreement called for in this
paragraph multiplied by (2) the lesser of the number of months
remaining in the then current term (including any Renewal Term to
which the Fund is already committed) and twelve. The Investment
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Adviser shall pay the Buyout Amount to Administrator on or before
the effective date of the Early Termination by means of wire or
other immediately available funds.
9.03 Effect of Termination.
9.03.01. The termination of this Agreement shall be without prejudice
to any rights that may have accrued hereunder to any party hereto
prior to such termination.
9.03.02. After termination of this Agreement and upon payment of all
accrued fees, reimbursable expenses and other moneys owed to the
Administrator, the Administrator shall deliver to the Trust, or
as it shall direct, all books of account, records, registers,
correspondence, documents and assets relating to the affairs of
or belonging to the Trust in the possession of or under the
control of the Administrator or any of its agents or delegates.
9.03.03. In the event any and all accrued fees, reimbursable expenses
and other moneys owed to the Administrator hereunder remain
unpaid in whole or in part for more than thirty days past due,
the Administrator, without further notice, may take any and all
actions it deems necessary to collect such amounts due, and any
and all of its collection expenses, costs and fees shall be paid
by the Trust, including, without limitation, administrative
costs, reasonable attorneys' fees, court costs, collection
agencies or agents and interest.
9.03.04. Notwithstanding the foregoing, in the event this Agreement is
terminated and for any reason the Administrator, with the written
consent of Trust, in fact continues to perform any one or more of
the services contemplated by this Agreement, the pertinent
provisions of this Agreement, including without limitation, the
provisions dealing with payment of fees and indemnification shall
continue in full force and effect. The Administrator shall be
entitled to collect from Trust, in addition to the compensation
described in Schedule III, the amount of all of the
Administrator's expenses in connection with the Administrator's
activities following such termination, including without
limitation, the delivery to Trust and/or its designees of Trust's
property, records, instruments and documents.
SECTION 10 CONFLICTS OF INTEREST
10.01 Non-Exclusive. The services of the Administrator rendered to the
Trust are not deemed to be exclusive. The Administrator is free to
render such services to others. The Administrator shall not be deemed
to be affected by notice of, or to be under any duty to disclose to
the Trust or Person acting on the Trust's behalf, information which
has come into its possession or the possession of an Interested Party
in the course of or in connection with providing administrative or
other services to any other person or in any manner whatsoever other
than in the course of carrying out its duties pursuant to this
Agreement.
10.02 Rights of Interested Parties. Subject to applicable law, nothing
herein contained shall prevent:
10.02.01. an Interested Party from buying, holding, disposing of or
otherwise dealing in any Shares for its own account or the
account of any of its customers or from receiving remuneration in
connection therewith, with the same rights which it would have
had if the Administrator were not a party to this Agreement;
provided, however, that the prices quoted by the Administrator
are no more
12
favorable to the Interested Party than to a similarly situated
investor in or redeeming holder of Shares;
10.02.02. an Interested Party from buying, holding, disposing of or
otherwise dealing in any securities or other investments for its
own account or for the account of any of its customers and
receiving remuneration in connection therewith, notwithstanding
that the same or similar securities or other investments may be
held by or for the account of the Trust;
10.02.03. an Interested Party from receiving any commission or other
remuneration which it may negotiate in connection with any sale
or purchase of Shares or Investments effected by it for the
account of the Trust; provided, however, that the amount of such
commission or other remuneration is negotiated at arm's length;
and
10.02.04. an Interested Party from contracting or entering into any
financial, banking or other transaction with the Trust or from
being interested in any such contract or transaction; provided,
however, that the terms of such transaction are negotiated at
arm's length.
SECTION 11 CONFIDENTIALITY
11.01 Confidential Information. The Administrator and the Trust (in such
capacity, the "Receiving Party") acknowledge and agree to maintain the
confidentiality of Confidential Information (as hereinafter defined)
provided by the Administrator and the Trust (in such capacity, the
"Disclosing Party") in connection with this Agreement. The Receiving
Party shall not disclose or disseminate the Disclosing Party's
Confidential Information to any Person other than those employees,
agents, contractors, subcontractors and licensees of the Receiving
Party, or to those employees, agents, technology service providers,
contractors, subcontractors, licensors and licensees of any agent or
affiliate, who have a need to know it in order to assist the Receiving
Party in performing its obligations, or to permit the Receiving Party
to exercise its rights under this Agreement. In addition, the
Receiving Party (a) shall take all Reasonable Steps to prevent
unauthorized access to the Disclosing Party's Confidential
Information, and (b) shall not use the Disclosing Party's Confidential
Information, or authorize other Persons to use the Disclosing Party's
Confidential Information, for any purposes other than in connection
with performing its obligations or exercising its rights hereunder,
provided, however, that nothing herein shall limit the Administrator's
ability to include de-identified, anonymized data related to the
Services hereunder for the purpose of aggregating data and preparing
reports regarding use and functioning of the Service by the
Administrator's various clients. For the avoidance of doubt, such
de-identified, anonymized data shall not be included in the definition
of "Confidential Information" hereunder. As used herein, "Reasonable
Steps" means steps that a party takes to protect its own, similarly
confidential or proprietary information of a similar nature, which
steps shall in no event be less than a reasonable standard of care.
The term "Confidential Information," as used herein, means all
business strategies, plans and procedures, proprietary information,
methodologies, data and trade secrets, and other confidential
information including, without limitation, any non-public personal
information (as defined in Regulation S-P) of the Disclosing Party,
its affiliates, their respective clients or suppliers, or other
Persons with whom they do business, that may be obtained by the
Receiving Party from any source or that may be developed as a result
of this Agreement, the terms of (or any exercise of rights granted by)
this Agreement, the Trust's portfolio, trading or position
information, technical data; trade secrets; know-how; business
processes; product plans; product designs; service plans; services;
customer
13
lists and customers; markets; software; developments; inventions;
processes; formulas; technology; designs; drawings; and marketing,
distribution or sales methods and systems; sales and profit figures or
other financial information that is disclosed, directly or indirectly,
to the Receiving Party by or on behalf of the Disclosing Party,
whether in writing, orally or by other means and whether or not such
information is marked as confidential.
11.02 Exclusions. The provisions of this Section 11 respecting Confidential
Information shall not apply to the extent, but only to the extent,
that such Confidential Information: (a) is already known to the
Receiving Party free of any restriction at the time it is obtained
from the Disclosing Party, (b) is subsequently learned from an
independent third party free of any restriction and without breach of
this Agreement; (c) is or becomes publicly available through no
wrongful act of the Receiving Party or any third party; (d) is
independently developed by or for the Receiving Party without
reference to or use of any Confidential Information of the Disclosing
Party; or (e) is required to be disclosed pursuant to an applicable
law, rule, regulation, government requirement or court order, or the
rules of any stock exchange (provided, however, that the Receiving
Party shall advise the Disclosing Party of such required disclosure
promptly upon learning thereof in order to afford the Disclosing Party
a reasonable opportunity to contest, limit and/or assist the Receiving
Party in crafting such disclosure).
11.03 Permitted Disclosure. The Receiving Party shall advise its employees,
agents, contractors, subcontractors and licensees, and shall require
its affiliates to advise their employees, agents, contractors,
subcontractors and licensees, of the Receiving Party's obligations of
confidentiality and non-use under this Section 11, and shall be
responsible for ensuring compliance by its and its affiliates'
employees, agents, contractors, subcontractors and licensees with such
obligations. In addition, the Receiving Party shall require all
Persons that are provided access to the Disclosing Party's
Confidential Information, other than the Receiving Party's accountants
and legal counsel, to execute confidentiality or non-disclosure
agreements containing provisions substantially similar to those set
forth in this Section 11. The Receiving Party shall promptly notify
the Disclosing Party in writing upon learning of any unauthorized
disclosure or use of the Disclosing Party's Confidential Information
by such Persons.
11.04 Effect of Termination. Upon the Disclosing Party's written request
following the termination of this Agreement, the Receiving Party
promptly shall return to the Disclosing Party, or destroy, all
Confidential Information of the Disclosing Party provided under or in
connection with this Agreement, including all copies, portions and
summaries thereof. Notwithstanding the foregoing sentence, (a) the
Receiving Party may retain one copy of each item of the Disclosing
Party's Confidential Information for purposes of identifying and
establishing its rights and obligations under this Agreement, for
archival or audit purposes and/or to the extent required by applicable
law, and (b) the Administrator shall have no obligation to return or
destroy Confidential Information of Trust that resides in save tapes
of Administrator; provided, however, that in either case all such
Confidential Information retained by the Receiving Party shall remain
subject to the provisions of Section 11 for so long as it is so
retained. If requested by the Disclosing Party, the Receiving Party
shall certify in writing its compliance with the provisions of this
Section 11.
SECTION 12 MISCELLANEOUS PROVISIONS
12.01 Internet Access. Data and information may be made electronically
accessible to Trust, its Investment Adviser and/or sub-adviser(s) and
its investors through Internet access to one or more web sites
provided by the Administrator ("Web Access"). As between the Trust and
Administrator, the Administrator shall own all right, title and
interest to such Web Access, including, without limitation, all
content, software, interfaces, documentation,
14
data, trade secrets, design concepts, "look and feel" attributes,
enhancements, improvements, ideas and inventions and all intellectual
property rights inherent in any of the foregoing or appurtenant
thereto including all patent rights, copyrights, trademarks, know-how
and trade secrets (collectively, the "Proprietary Information"). Trust
recognizes that the Proprietary Information is of substantial value to
the Administrator and shall not use or disclose the Proprietary
Information except as specifically authorized in writing by the
Administrator. Use of the Web Access by Trust or its agents or
investors will be subject to any additional terms of use set forth on
the web site. All Web Access and the information (including text,
graphics and functionality) on the web sites related to such Web
Access is presented "As Is" and "As Available" without express or
implied warranties including, but not limited to, implied warranties
of non-infringement, merchantability and fitness for a particular
purpose. The Administrator neither warrants that the Web Access will
be uninterrupted or error free, nor guarantees the accessibility,
reliability, performance, timeliness, sequence, or completeness of
information provided on the Web Access.
12.02 Independent Contractor. In making, and performing under, this
Agreement, the Administrator shall be deemed to be acting as an
independent contractor of Trust and neither the Administrator nor its
employees shall be deemed an agent, affiliate, legal representative,
joint venturer or partner of Trust. No party is authorized to bind any
other party to any obligation, affirmation or commitment with respect
to any other Person.
12.03 Assignment; Binding Effect. The Trust may not assign, delegate or
transfer, by operation of law or otherwise, this Agreement (in whole
or in part), or any of Trust's obligations hereunder, without the
prior written consent of the Administrator, which consent shall not be
unreasonably withheld or delayed. The Administrator may assign or
transfer, by operation of law or otherwise, all or any portion of its
rights under this Agreement to an affiliate of the Administrator or to
any person or entity who purchases all or substantially all of the
business or assets of the Administrator to which this Agreement
relates, provided that such affiliate, person or entity agrees in
advance and in writing to be bound by the terms, conditions and
provisions of this Agreement. Subject to the foregoing, all of the
terms, conditions and provisions of this Agreement shall be binding
upon and shall inure to the benefit of each party's successors and
permitted assigns. Any assignment, delegation, or transfer in
violation of this provision shall be void and without legal effect.
12.04 Agreement for Sole Benefit of the Administrator and the Trust. This
Agreement is for the sole and exclusive benefit of the Administrator
and the Trust and will not be deemed to be for the direct or indirect
benefit of either (i) the clients or customers of the Administrator or
the Trust or (ii) the sponsor. The clients or customers of the
Administrator, the Trust or any sponsor will not be deemed to be third
party beneficiaries of this Agreement nor to have any other
contractual relationship with the Administrator by reason of this
Agreement.
12.05 Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania without giving effect to any choice or conflict of law
provision or rule that would cause the application of the laws of any
other jurisdiction. To the extent that the applicable laws of the
Commonwealth of Pennsylvania, or any of the provisions of this
Agreement, conflict with the applicable provisions of the 1940 Act,
the Securities Act of 1933 or the Securities Exchange Act of 1934, the
latter shall control. Each party to this Agreement, by its execution
hereof, (i) hereby irrevocably submits to the nonexclusive
jurisdiction of the state courts of the Commonwealth of Pennsylvania
or the United States District Courts for the Eastern District of
Pennsylvania for the purpose of any action between the parties arising
in whole or in part under or in connection with this Agreement, and
(ii) hereby waives to the extent not prohibited by applicable law, and
agrees not to assert, by way of motion, as a defense or otherwise, in
any such action, any claim that it is not subject personally to the
15
jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that any such action brought in
one of the above-named courts should be dismissed on grounds of forum
non conveniens, should be transferred or removed to any court other
than one of the above-named courts, or should be stayed by reason of
the pendency of some other proceeding in any other court other than
one of the above-named courts, or that this Agreement or the subject
matter hereof may not be enforced in or by such court.
12.06 Equitable Relief. Each party agrees that any other party's violation
of the provisions of Section 11 (Confidentiality) may cause immediate
and irreparable harm to the other party for which money damages may
not constitute an adequate remedy at law. Therefore, the parties agree
that, in the event either party breaches or threatens to breach said
provision or covenant, the other party shall have the right to seek,
in any court of competent jurisdiction, an injunction to restrain said
breach or threatened breach, without posting any bond or other
security.
12.07 Dispute Resolution. Whenever either party desires to institute legal
proceedings against the other concerning this Agreement, it shall
provide written notice to that effect to such other party. The party
providing such notice shall refrain from instituting said legal
proceedings for a period of thirty days following the date of
provision of such notice. During such period, the parties shall
attempt in good faith to amicably resolve their dispute by negotiation
among their executive officers. This Section 12.07 shall not prohibit
either party from seeking, at any time, equitable relief as permitted
under Section 12.06.
12.08 Notice. All notices provided for or permitted under this Agreement
(except for correspondence between the parties related to operations
in the ordinary course) shall be deemed effective upon receipt, and
shall be in writing and (a) delivered personally, (b) sent by
commercial overnight courier with written verification of receipt, or
(c) sent by certified or registered U.S. mail, postage prepaid and
return receipt requested, to the party to be notified, at the address
for such party set forth below, or at such other address of such party
specified in the opening paragraph of this Agreement. Notices to the
Administrator shall be sent to the attention of: General Counsel, SEI
Investments Global Funds Services, Xxx Xxxxxxx Xxxxxx Xxxxx, Xxxx,
Xxxxxxxxxxxx 00000, with a copy, given in the manner prescribed above,
to the Trust's current relationship manager. Notices to the Trust
shall be sent to the persons specified in Schedule IV.
12.09 Entire Agreement; Amendments. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter
hereof. This Agreement supersedes all prior or contemporaneous
representations, discussions, negotiations, letters, proposals,
agreements and understandings between the parties hereto with respect
to the subject matter hereof, whether written or oral. This Agreement
may be amended, modified or supplemented only by a written instrument
duly executed by an authorized representative of each of the parties.
12.10 Severability. Any provision of this Agreement that is determined to
be invalid or unenforceable in any jurisdiction shall be ineffective
to the extent of such invalidity or unenforceability in such
jurisdiction, without rendering invalid or unenforceable the remaining
provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. If a court
of competent jurisdiction declares any provision of this Agreement to
be invalid or unenforceable, the parties agree that the court making
such determination shall have the power to reduce the scope, duration,
or area of the provision, to delete specific words or phrases, or to
replace the provision with a provision that is valid and enforceable
and that comes closest to expressing the original intention of the
parties, and this Agreement shall be enforceable as so modified.
16
12.11 Waiver. Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by written
instrument executed by such party. No failure of either party hereto
to exercise any power or right granted hereunder, or to insist upon
strict compliance with any obligation hereunder, and no custom or
practice of the parties with regard to the terms of performance
hereof, will constitute a waiver of the rights of such party to demand
full and exact compliance with the terms of this Agreement.
12.12 Anti-Money Laundering Laws. In connection with performing the
Services set forth herein, the Administrator may provide information
that the Trust may rely upon in connection with Trust's compliance
with applicable laws, policies and regulations aimed at the prevention
and detection of money laundering and/or terrorism activities
(hereinafter, the "Regulations"). Trust and the Administrator agree
that the Trust shall be responsible for its compliance with all such
Regulations. It shall be a condition precedent to providing Services
to the Trust under this Agreement and the Administrator shall have no
liability for non-performance of its obligations under this Agreement
unless it is satisfied, in its absolute discretion, that it has
sufficient and appropriate information and material to discharge its
obligations under the Regulations, and that the performance of such
obligations will not violate any Regulations applicable to it. Without
in any way limiting the foregoing, the Trust acknowledges that the
Administrator is authorized to return an investor's Investment in any
Portfolio and take any action necessary to restrict repayment of
redemption proceeds to the extent necessary to comply with its
obligations pursuant to the Regulations.
12.13 Force Majeure. No breach of any obligation of a party to this
Agreement (other than obligations to pay amounts owed) will constitute
an event of default or breach to the extent it arises out of a cause,
existing or future, that is beyond the control and without negligence
of the party otherwise chargeable with breach or default, including
without limitation: work action or strike; lockout or other labor
dispute; flood; war; riot; theft; act of terrorism, earthquake or
natural disaster. Either party desiring to rely upon any of the
foregoing as an excuse for default or breach will, when the cause
arises, give to the other party prompt notice of the facts which
constitute such cause; and, when the cause ceases to exist, give
prompt notice thereof to the other party.
12.14 Equipment Failures. In the event of equipment failures beyond the
Administrator's reasonable control, the Administrator shall take all
reasonable and prompt steps to minimize service interruptions but
shall have no liability with respect thereto. The Administrator shall
develop and maintain a plan for recovery from equipment failures which
may include contractual arrangements with appropriate parties making
reasonable provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available.
12.15 Non-Solicitation. During the term of this Agreement and for a period
of one year thereafter, the Trust shall not solicit, make an offer of
employment to, or enter into a consulting relationship with, any
person who was an employee of the Administrator who worked directly on
the account of the Trust at the Administrator during the term of this
Agreement. If Trust breaches this provision, Trust shall pay to the
Administrator liquidated damages equal to 100% of the most recent
twelve month salary of the Administrator's former employee together
with all legal fees reasonably incurred by the Administrator in
enforcing this provision. The foregoing restriction on solicitation
does not apply to unsolicited applications for jobs, responses to
public advertisements or candidates submitted by recruiting firms,
provided that such firms have not been contacted to circumvent the
spirit and intention of this Section 12.15.
12.16 Headings. All Section headings contained in this Agreement are for
convenience of reference only, do not form a part of this Agreement
and will not affect in any way the meaning or interpretation of this
Agreement.
17
12.17 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall constitute one and the same
instrument. Each such counterpart shall be deemed an original, and it
shall not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart. This Agreement shall be
deemed executed by both parties when any one or more counterparts
hereof or thereof, individually or taken together, bears the original
facsimile or scanned signatures of each of the parties.
12.18 Publicity. Except to the extent required by applicable law, neither
the Administrator nor the Trust shall issue or initiate any press
release arising out of or in connection with this Agreement or the
Services rendered hereunder; provided, however, that if no special
prominence is given or particular reference made to the Trust over
other clients, nothing herein shall prevent the Administrator from (i)
placing the Trust's or the Investment Manager's name or logo
(including any registered trademark or service xxxx) on the
Administrator's client list(s) (and sharing such list(s) with current
or potential clients of the Administrator) or (ii) otherwise orally
disclosing that Trust is a client of the Administrator at
presentations, conferences or other similar meetings. If the
Administrator desires to engage in any type of publicity other than as
set forth in subsections (i) through (ii) above or if Trust desires to
engage in any type of publicity, the party desiring to engage in such
publicity shall obtain the prior written consent of the other party
hereto, such consent not to be unreasonably withheld, delayed or
conditioned.
12.19 Insurance. Each party hereto shall maintain appropriate insurance
coverage with respect to such party's responsibilities hereunder;
provided, however, that the amount of insurance coverage shall in no
way affect a party's obligations or liability as otherwise set forth
in this Agreement. Without limiting the foregoing, in the event that
the Administrator makes an employee of the Administrator available to
the Trust to serve as an officer of the Trust, the Trust shall
maintain professional liability (directors' & officers' and errors and
omissions) insurance with limits of not less than $5 Million per
occurrence ("Officer Insurance Minimum"). The Trust shall provide a
certificate of insurance to the Administrator prior to Administrator
providing Services to the Fund and annually thereafter upon
Administrator's request. Such certificate of insurance shall contain
an agreement by the issuing insurance company that such insurance
shall not be materially changed, cancelled or terminated upon less
than thirty days prior written notice to Administrator. Directors' &
officers' insurance shall be acquired only through insurance companies
having an A.M. Best rating of A- VIII or better. The trust further
releases, assigns and waives any and all rights of recovery against
the Administrator and its employees, successors and permitted assigns
that the Trust may otherwise have or acquire in or from, or are in any
way connected with any loss covered by the Fund's D&O Liability
Insurance or because of deductible clauses in or inadequacy of limits
of such policy of insurance. The Trust shall promptly notify the
Administrator should its insurance coverage with respect to
professional liability be cancelled or fall below the Officer
Insurance Minimum, such notification to include the date of
cancellation, if applicable.
[The remainder of this page has intentionally been left blank.]
18
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the Effective Date.
ADMINISTRATOR: TRUST:
SEI INVESTMENTS GLOBAL FUNDS SERVICES GALLERY TRUST
By:__________________________________ By:_____________________________
Name: Name:
Title: Title:
SCHEDULE I
PORTFOLIOS
MONDRIAN INTERNATIONAL EQUITY FUND
SCHEDULE II
LIST OF SERVICES
(a) Maintain the Trust's accounting books and records;
(b) Obtain fund security valuations from appropriate sources consistent with
the Trust's pricing and valuation policies, and calculate net asset value
of each fund and class;
(c) Compute yields, total return, expense ratios, fund turnover rate and
average dollar-weighted fund maturity, as appropriate;
(d) Track and validate income and expense accruals, analyze and modify expense
accrual changes periodically, and process expense disbursements to vendors
and service providers;
(e) Perform cash processing such as recording paid-in capital activity,
perform necessary reconciliations with the transfer agent and the
custodian, and provide cash availability data to the adviser, if requested;
(f) Calculate required ordinary income and capital gains distributions,
coordinate estimated cash payments, and perform necessary reconciliations
with the transfer agent;
(g) Provide standardized performance reporting data to the Trust and its
adviser;
(h) Provide performance, financial and expense information for registration
statements and proxies;
(i) Communicate net asset value, yield, total return or other financial data
to appropriate third party reporting agencies, and assist in resolution of
errors reported by such third party agencies;
(j) Prepare Trust's financial statements for review by fund management and
independent auditors, manage annual and semi-annual report preparation
process, prepare Forms N-SAR and 24f-2, provide fund performance data for
annual report, coordinate printing and delivery of annual and semi-annual
reports to shareholders, and file Form N-SAR, Form 24f-2 and
annual/semi-annual reports via XXXXX;
(k) Monitor each Fund's compliance with the requirements of Subchapter M of
the Internal Revenue Code with respect to status as a regulated investment
company;
(l) Prepare and file federal and state tax returns for the Trust, and provide
data for year-end 1099's and supplemental tax letters;
(m) Provide such fund accounting and financial reports in connection with
quarterly meetings of the Board of Trustees as are required or as the Board
may reasonably request;
(n) Manage the proxy process, including evaluating proxy distribution
channels, coordinating with outside service provider to distribute proxies,
track shareholder responses and tabulate voting results, and managing the
proxy solicitation vendor if necessary;
(o) Provide individuals to serve as officers of the Trust, as requested;
(p) Coordinate with Trust's counsel on drafting, review and filing of
registration statements and proxies, and coordinate printing and delivery
of prospectuses and proxies;
(q) Coordinate the Trust's Board of Trustees' schedule, agenda and production
of Board meeting materials, and attend Board meetings (if requested);
(r) Provide consultation to the Trust and its adviser on regulatory matters
relating to the operation of the Trust, and update the Trust and its
adviser on significant regulatory and legislative developments which may
affect the Trust;
(s) Develop or assist legal counsel to the Trust in the development of
policies and procedures relating to the operation of the Trust;
(t) Act as liaison to legal counsel to the Trust and, where applicable, to
legal counsel to the Trust's independent Trustees;
(u) Coordinate with Trust counsel in the preparation, review and execution of
contracts between the Trust and third parties, such as the Trust's
investment adviser, transfer agent, and custodian, and record-keepers or
shareholder service providers;
(v) Assist the Trust in handling and responding to routine regulatory
examinations with respect to records retained or services provided by the
Administrator, and coordinate with Trust's legal counsel in responding to
any non-routine regulatory matters with respect to such matters;
(w) Coordinate as necessary the registration or qualification of shares of the
Trust with appropriate state securities authorities;
(x) Provide the Trust and the Adviser with a copy of SEI's annual SSAE 16
Report;
(y) Use reasonable efforts to provide the Adviser with notice received by SEI
relating to anticipated changes to the composition of the Board.
2
SCHEDULE III
SCHEDULE OF FEES
ADMINISTRATION AND ACCOUNTING FEE:
The following fees are due and payable monthly to Administrator pursuant to
Section 8 of the Agreement. Each Portfolio will be charged the greater of the
Asset Based Fee or the Annual Minimum Fee, in each case calculated in the
manner set forth below.
ASSET BASED FEES: (calculated and assessed daily based on the aggregate net
assets of all Portfolios of the Trust and allocated to each Portfolio pro-rata
based on the net assets of each Portfolio):
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TRUST ASSETS BASIS POINTS
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First $250 million in aggregate net assets of the Trust 12
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Aggregate net assets of the Trust between $250 million and $500 million 10
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Aggregate net assets of the Trust between $500 million and $1 billion 8
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Aggregate net assets of the Trust between $1 billion and $2 billion 6
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Aggregate net assets of the Trust between $2 billion and $3 billion 4.5
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Aggregate net assets of the Trust between $3 billion and $4 billion 3.5
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Aggregate net assets of the Trust between $4 billion and $5 billion 3
--------------------------------------------------------------------------------------------------
Aggregate net assets of the Trust in excess of $5 billion 2
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ANNUAL MINIMUM FEE (CALCULATED AND PAID ON A MONTHLY BASIS):
The Trust will be subject to an aggregate annual minimum fee calculated daily
and payable monthly in arrears on a pro rata basis based on the net assets of
each Portfolio, calculated based on the number of existing, funded Portfolios,
and at a rate based on the investment strategy of each Portfolio as set forth
in the table below. Notwithstanding the foregoing, in the event the Trust has
aggregate net assets of less than $2 billion and 11 or more Portfolios, there
shall be an annual surcharge of $50,000, to be allocated pro-rata between the
Portfolios based on the average daily net assets of each Portfolio.
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PORTFOLIO INVESTMENT STRATEGY ANNUAL MINIMUM FEE
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US EQUITY STRATEGY $100,000 USD*
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INTERNATIONAL EQUITY STRATEGY $125,000 USD*
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GLOBAL FIXED INCOME STRATEGY $125,000 USD*
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EMERGING MARKETS EQUITY STRATEGY $135,000 USD*
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* Notwithstanding the foregoing, the Annual Minimum Fee applicable to each
Portfolio shall be reduced to equal $85,000 from the Portfolio Live Date
through and until the one year anniversary of the Portfolio Live Date,
regardless of investment strategy.
ADDITIONAL CLASSES:
$15,000 per annum per class of a Portfolio beyond the first such class
(charged in addition to applicable Asset Based Fees or Annual Minimum Fees)
NEW PORTFOLIO FEES (PAYABLE BY THE INVESTMENT ADVISER):
$10,000 one-time fee for each new Portfolio added to Schedule I from time
to time, payable prior to the Live Date for such Portfolio.
INVESTMENT ADVISER MAINTENANCE FEE (PAYABLE BY THE INVESTMENT ADVISER):
To the extent that the Board has approved a Portfolio within the Trust and
approved the Investment Adviser as the Portfolio's adviser, and such
Portfolio's Live Date has not occurred by the date that is the six-month
anniversary of the date of the last such approval (the "Approval Date"), then
the Investment Adviser shall pay Administrator a relationship maintenance fee
equal to $1,000 per month for each month that the Portfolio has not commenced
operations and such fee shall be retroactive to include each of the first six
months following the Approval Date.
REORGANIZATION FEE (PAYABLE BY THE INVESTMENT ADVISER):
The Investment Adviser shall pay Administrator a transaction charge in
connection with each Reorganization Event to which any Fund thereof is a party,
as described below:
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REORGANIZATION EVENT DESCRIPTION FEE
-------------------------------------------------------------------------------------------------
Portfolio's or Portfolios' transition into the Trust as a part of the initial $0
establishment of the Trust
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Reorganization Event with over $300 million of assets coming into the Trust $0
-------------------------------------------------------------------------------------------------
Reorganization Event with $150-$300 million of assets coming into the Trust $15,000
-------------------------------------------------------------------------------------------------
Reorganization Event with $50-$150 million of assets coming into the Trust $30,000
-------------------------------------------------------------------------------------------------
Reorganization Event with less than $50 million of assets coming into the Trust $50,000
-------------------------------------------------------------------------------------------------
All other Reorganization Events $50,000
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For purposes of the foregoing, a "Reorganization Event" means any material
change in the organizational structure of a Portfolio, including, without
limitation, any merger, acquisition or divestiture of all or any portion of the
assets of a Portfolio as well as any acquisition or merger by a Portfolio of
any other fund or assets into the Portfolio.
In connection with any Reorganization Event, so long as doing so is consistent
with acting in the best interests of shareholders of the Portfolios, the
Administrator shall: (i) work promptly and in good faith to complete the
Reorganization Event, (ii) not unreasonably withhold its assistance to complete
the Reorganization Event, (iii) use reasonable efforts to recommend to the
Board that the Reorganization Event be approved (iv) use reasonable efforts to
recommend to the Board that the Board recommend to the shareholders that the
Reorganization Event be approved and (v) shall utilize its negotiated
arrangements with vendors (such as outside counsel) to execute the
Reorganization Event; provided that such costs shall be borne by the Investment
Adviser or the Funds.
A Reorganization Event is distinct from a Change of Control described
elsewhere.
EXPENSE REIMBURSEMENT:
All reasonable expenses incurred by the Administrator on behalf of a Portfolio
will be billed to the applicable Portfolio quarterly in arrears as set forth in
Section 7.02 of this Agreement.
4
SCHEDULE IV
NOTICE INSTRUCTION FORM
TO WHOM NOTICES SHOULD BE SENT PURSUANT TO SECTION 12.08 OF THE AGREEMENT:
Name of Party or Parties:
Name of Contact:
Address:
Telephone No.:
Email Address:
5
