ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 1st day of October, 1996, by and
between THE OFFITBANK VARIABLE INSURANCE FUND, INC., a Maryland corporation (the
"Company"), and BISYS FUND SERVICES LIMITED PARTNERSHIP, d/b/a BISYS FUND
SERVICES (the "Administrator"), an Ohio limited partnership.
WHEREAS, the Company is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of several series of shares of common stock ("Shares"); and
WHEREAS, the Company desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
such series of the Company as the Company and the Administrator may agree on
("Portfolios") and as listed on Schedule A attached hereto and made a part of
this Agreement, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Company and the Administrator hereby agree as
follows:
ARTICLE 1. Retention of the Administrator; Conversion to the Services.
The Company hereby engages the Administrator to act as the administrator of the
Portfolios and to furnish the Portfolios with the management and administrative
services as set forth in Article 2 below (collectively, the "Services"), and, in
connection therewith, the Company agrees to convert to the Administrator's data
processing systems and software (the "BISYS System") as necessary in order to
receive the Services. The Company shall cooperate with the Administrator to
provide the Administrator with all necessary information and assistance required
to successfully convert to the BISYS System. The Administrator shall provide the
Company with a schedule relating to such conversion and the parties agree that
the conversion may progress in stages. The date upon which all Services shall
have been converted to the BISYS System shall be referred to herein as the
"Conversion Date." The Administrator hereby accepts such engagement and agrees
to perform the Services commencing, with respect to each individual Service, on
the date that the conversion of such Service to the BISYS System has been
completed. The Administrator shall determine in accordance with its normal
acceptance procedures when the applicable Service has been successfully
converted.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Company in any way and shall
not be deemed an agent of the Company.
ARTICLE 2. Administrative Services. The Administrator shall perform or
supervise the performance by others of administrative services in connection
with the operations of the
Portfolios, and, on behalf of the Company, will investigate, assist in the
selection of and conduct relations with custodians, depositories, accountants,
legal counsel, underwriters, brokers and dealers, corporate fiduciaries,
insurers, banks and persons in any other capacity deemed to be necessary or
desirable for the Portfolios' operations. The Administrator shall provide the
Directors of the Company with such reports regarding investment performance as
they may reasonably request but shall have no responsibility for supervising the
performance by any investment adviser or sub-adviser of its responsibilities.
The Administrator shall provide the Company with regulatory reporting,
all necessary office space, equipment, personnel, compensation and facilities
(including facilities for meetings of shareholders ("Shareholders") and
directors of the Company) for handling the affairs of the Portfolios and such
other services as the Administrator shall, from time to time, determine to be
necessary to perform its obligations under this Agreement. In addition, at the
request of the Board of Directors, the Administrator shall make reports to the
Company's Directors concerning the performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator
shall:
(a) calculate contractual Company expenses and control all
disbursements for the Company, and as appropriate compute the
Company's yields, total return, expense ratios, portfolio turnover
rate and, if required, portfolio average dollar-weighted maturity;
(b) prepare and file with the SEC Post-Effective Amendments to
the Company's Registration Statement, Notices of Annual or Special
Meetings of Shareholders and Proxy materials relating to such
meetings; accumulate information for and, subject to the approval by
the Company's Treasurer, prepare reports to the Company's shareholders
of record and the SEC including, but not necessarily limited to, the
preparation and filing of (i) Semi-Annual Reports on Form N-SAR and
(ii) Notices pursuant to Rule 24f-2;
(c) prepare such reports, applications and documents (including
reports regarding the sale and redemption of Shares as may be required
in order to comply with Federal and state securities law) as may be
necessary or desirable to register the Company's Shares with state
securities authorities, monitor the sale of Company Shares for
compliance with state securities laws, and file with the appropriate
state securities authorities the registration statements and reports
for the Company and the Company's Shares and all amendments thereto,
as may be necessary or convenient to register and keep effective the
Company and the Company's Shares with state securities authorities to
enable the Company to make a continuous offering of its Shares;
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(d) review and provide advice and counsel on all sales literature
(e.g., advertisements, brochures and shareholder communications) with
respect to each of the Portfolios;
(e) administer contracts on behalf of the Company with, among
others, the Company's investment adviser, distributor, custodian,
transfer agent and fund accountant;
(f) supervise the Company's transfer agent with respect to the
payment of dividends and other distributions to Shareholders;
(g) calculate performance data of the Portfolios for
dissemination to information services covering the investment company
industry;
(h) coordinate and supervise the preparation and filing of the
Company's tax returns;
(i) examine and review the operations and performance of the
various organizations providing services to the Company or any
Portfolio of the Company, including, without limitation, the
Company's investment adviser, distributor, custodian, fund
accountant, transfer agent, outside legal counsel and independent
public accountants, and at the request of the Board of Directors,
report to the Board on the performance of organizations;
(j) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout and printing of the
Company's semi-annual and annual reports to Shareholders;
(k) assist with the design, development, and operation of the
Portfolios, including new classes, investment objectives, policies and
structure;
(l) provide individuals reasonably acceptable to the Company's
Board of Directors to serve as officers of the Company, who will be
responsible for the management of certain of the Company's affairs as
determined by the Company's Board of Directors;
(m) advise the Company and its Board of Directors on matters
concerning the Company and its affairs;
(n) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Company in
accordance with the requirements of Rules 17g-1 and 17d-1(d)(7) under
the 1940 Act as such bonds and policies are approved by the Company's
Board of Directors;
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(o) monitor and advise the Company and its Portfolios on their
regulated investment company status under the Internal Revenue Code of
1986, as amended;
(p) perform all administrative services and functions of the
Company and each Portfolio to the extent administrative services and
functions are not provided to the Company or such Portfolio pursuant
to the Company's or such Portfolio's investment advisory agreement,
distribution agreement, custodian agreement, transfer agent agreement
and fund accounting agreement;
(q) furnish advice and recommendations with respect to other
aspects of the business and affairs of the Portfolios as the Company
and the Administrator shall determine desirable; and
(r) assist in monitoring and developing compliance procedures for
each Portfolio which will include, among other matters, procedures to
monitor compliance with each Portfolio's investment objective,
policies, restrictions, tax matters and applicable laws and
regulations;
(s) monitor the Company's arrangements with respect to services
provided by financial institutions which are, or wish to become,
shareholder servicing agents for the Company ("Shareholder Servicing
Agents"). With respect to Shareholding Servicing Agents, the
Administrator shall specifically monitor and review the services
rendered by the Shareholder Servicing Agents to their customers, who
are the beneficial owners of Shares, pursuant to agreements between
the Company and such Shareholder Servicing Agents ("Shareholder
Servicing Agreements"), including, among other things, reviewing the
qualifications of financial institutions wishing to be Shareholder
Servicing Agents, assisting in the execution and delivery of
Shareholder Servicing Agreements, reporting to the Board of Directors
with respect to the amounts paid or payable by the Company from time
to time under the Shareholder Servicing Agreements and the nature of
the services provided by Shareholder Servicing Agents, and maintaining
appropriate records in connection with its monitoring duties; and
(t) provide legal advice and counsel to the Company with respect
to regulatory matters including: monitoring regulatory and legislative
developments which may affect the Company and assisting in the
strategic response to such developments, counseling and assisting the
Company in routine regulatory examinations or investigations of the
Company, and working closely with outside counsel to the Company in
response to any litigation or non-routine regulatory matters.
In performing its duties as administrator of the Company, the
Administrator (i) will act in accordance with the Articles of Incorporation,
By-Laws and prospectuses of the Company and with the instructions and directions
of the Board of Directors of the Company and will conform to and comply with the
requirements of the 1940 Act and all other applicable federal or state
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laws and regulations and (ii) will consult with legal counsel to the Company, as
necessary and appropriate.
The Administrator shall perform such other services for the Company
that are mutually agreed upon by the parties from time to time. Such services
may include performing internal audit examinations; mailing the annual reports
of the Portfolios; preparing an annual list of Shareholders; and mailing notices
of Shareholders' meetings, proxies and proxy statements, for all of which the
Company will pay the Administrator's out-of-pocket expenses.
ARTICLE 3. Allocation of Charges and Expenses.
(A) The Administrator. The Administrator shall furnish at its own
expense the executive, supervisory and clerical personnel necessary to perform
its obligations under this Agreement. The Administrator shall also provide the
items which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Company as well as all Directors of the
Company who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Company retained by the Directors of the
Company to perform services on behalf of the Company.
(B) The Company. The Company assumes and shall pay or cause to be paid
all other expenses of the Company not otherwise allocated herein, including,
without limitation, taxes; interest; fees (including fees paid to its Directors
who are not affiliated with the investment adviser or any of its affiliates);
fees payable to the Securities and Exchange Commission; state securities
qualification fees; costs of preparing and printing prospectuses for regulatory
purposes and for distribution to existing Shareholders; advisory and
administration fees; charges of the custodian and transfer agent; insurance
premiums; auditing and legal expenses; costs of shareholders' reports and
Shareholders' meetings; any extraordinary expenses; and brokerage fees and
commissions, if any, in connection with the purchase or sale of portfolio
securities.
ARTICLE 4. Compensation of the Administrator.
(A) Administration Fee. For the services to be rendered, the facilities
furnished and the expenses assumed by the Administrator pursuant to this
Agreement, the Company shall pay to the Administrator compensation at an annual
rate specified in Schedule A attached hereto. Such compensation shall be
calculated and accrued daily, and paid to the Administrator monthly.
If the Conversion Date occurs subsequent to the first day of a
month or termination of this Agreement occurs before the last day of a 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 above. Payment of the Administrator's
compensation for the preceding month shall be made promptly.
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(B) Survival of Compensation Rights. All rights of compensation under
this Agreement for services performed as of the termination date shall survive
the termination of this Agreement.
ARTICLE 5. Limitation of Liability of the Administrator. The duties of
the Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Administrator
hereunder. The Administrator shall not be liable 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 hereunder, except a loss resulting from willful misfeasance, bad
faith or negligence in the performance of its duties, or by reason of reckless
disregard of its obligations and duties hereunder, except as may otherwise be
provided under provisions of applicable law which cannot be waived or modified
hereby. (As used in this Article 5, the term "Administrator" shall include
partners, officers, employees and other agents of the Administrator as well as
the Administrator itself.)
So long as the Administrator acts in good faith and with due diligence
and without negligence or reckless disregard of its obligations hereunder, the
Company assumes full responsibility and shall indemnify the 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 the Administrator's actions taken or nonactions with
respect to the performance of services hereunder. The Administrator agrees to
indemnify and hold harmless the Company, its employees, agents, Directors,
officers and nominees from and against any and all actions, suits and claims,
whether groundless or otherwise, and from and against any and all judgements,
liabilities, losses, damages, costs, charges, reasonable counsel fees and other
expenses of every nature and character arising out of or in any way relating to
the Administrator's bad faith, willful misfeasance, negligence or reckless
disregard by it of its obligations and duties, with respect to the performance
of services under this Agreement. The indemnity and defense provisions set forth
herein shall indefinitely survive the termination of this Agreement.
The 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. In order
that the indemnification provision contained herein shall apply, however, it is
understood that if in any case the indemnifying 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.
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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 the indemnifying party and satisfactory to the
other 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 a suit, it will reimburse the other party for the
reasonable fees and expenses of any counsel retained by the other party.
The Administrator may apply to the Company at any time for instructions
and may consult counsel for the Company or its own counsel and with accountants
and other experts with respect to any matter arising in connection with the
Administrator's duties, and the Administrator shall not be liable or accountable
for any action taken or omitted by it in good faith in accordance with such
instructions or with the opinion of such counsel, accountants or other experts.
Also, the 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. The Administrator will not be held to have
notice of any change of authority of any officers, employees or agents of the
Company until receipt of written notice thereof from the Company.
ARTICLE 6. Activities of the Administrator. The services of the
Administrator rendered to the Company are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that directors, officers, employees
and Shareholders are or may be or become interested in the Administrator, as
officers, employees or otherwise and that partners, officers and employees of
the Administrator and its counsel are or may be or become similarly interested
in the Company, and that the Administrator may be or become interested in the
Company as a Shareholder or otherwise.
ARTICLE 7. Duration of this Agreement. The Term of this Agreement shall
be as specified in Schedule A hereto.
ARTICLE 8. Assignment. This Agreement shall not be assignable by either
party without the written consent of the other party; provided, however, that
the Administrator may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder. The
Administrator shall not, however, be relieved of any of its obligations under
this Agreement by the appointment of such subcontractor and provided further,
that the Administrator shall be responsible, to the extent provided in Article 5
hereof, for all acts of such subcontractor as if such acts were its own. This
Agreement shall be binding upon, and
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shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
ARTICLE 9. Amendments. This Agreement may be amended by the parties
hereto only if such amendment is specifically approved (i) by the vote of a
majority of the Directors of the Company, and (ii) by the vote of a majority of
the Directors of the Company who are not parties to this Agreement or interested
persons of any such party, cast in person at a Board of Directors meeting called
for the purpose of voting on such approval.
For special cases, the parties hereto may amend such procedures set
forth herein as may be appropriate or practical under the circumstances, and the
Administrator may conclusively assume that any special procedure which has been
approved by the Company does not conflict with or violate any requirements of
its Articles of Incorporation or then current prospectuses, or any rule,
regulation or requirement of any regulatory body.
ARTICLE 10. Certain Records. The 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 the Administrator
on behalf of the Company shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Company and will be made
available to or surrendered promptly to the Company on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Company and follow the
Company's instructions as to permitting or refusing such inspection; provided
that the Administrator may exhibit such records to any person in any case where
it is advised by its counsel that it may be held liable for failure to do so,
unless (in cases involving potential exposure only to civil liability) the
Company has agreed to indemnify the Administrator against such liability.
ARTICLE 11. Definitions of Certain Terms. The terms "interested person"
and "affiliated person," when used in this Agreement, shall have the respective
meanings specified in the 1940 Act and the rules and regulations thereunder,
subject to such exemptions as may be granted by the Securities and Exchange
Commission.
ARTICLE 12. 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, addressed by the party giving notice to the
other party at the following address: if to the Administrator, to it at 0000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000; if to the Company, to it at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000, or at such other address as such party may from time
to time specify in writing to the other party pursuant to this Section.
ARTICLE 13. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the applicable provisions
of the 1940 Act. To the extent
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that the applicable laws of the State of New York, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control.
ARTICLE 14. Multiple Originals. 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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
THE OFFITBANK VARIABLE
INSURANCE FUND, INC.
By: /s/Xxxx X. Xxxxxxx
----------------------------
Title: Assistant Treasurer
-------------------------
BISYS FUND SERVICES LIMITED
PARTNERSHIP
BY: BISYS FUND SERVICES, INC.
GENERAL PARTNER
By: /s/Xxxxxxx Xxxxxx
----------------------------
Title: Executive Vice President
-------------------------
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SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF OCTOBER 1, 1996
BETWEEN THE OFFITBANK VARIABLE INSURANCE FUND, INC.
AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
Portfolios: This Agreement shall apply to all Portfolios of the Company,
either now or hereafter created (collectively, the
"Portfolios"). The current portfolios of the Company are set
forth below:
OFFITBANK VIF - High Yield Fund
OFFITBANK VIF - Emerging Markets Fund
OFFITBANK VIF - Total Return Fund
OFFITBANK VIF - U.S. Small Cap Fund
OFFITBANK VIF - Government Securities Fund
OFFITBANK DJG - Value Equity Fund
Fees: Pursuant to Article 4, in consideration of services rendered
and expenses assumed pursuant to this Agreement, the Company
will pay the Administrator on the first business day of each
month, or at such time(s) as the Administrator shall request
and the parties hereto shall agree, a fee computed daily at
the annual rate of:
Fifteen one-hundredths of one percent (.15%) of the
Company's average daily net assets.
The fee for the period from the day of the month upon which
the Conversion Date occurs until the end of that month shall
be prorated according to the proportion which such period
bears to the full monthly period. Upon any termination of
this Agreement before the end of any month, the fee for such
part of a month shall be prorated according to the
proportion which such period bears to the full monthly
period and shall be payable upon the date of termination of
this Agreement.
For purposes of determining the fees payable to the
Administrator, the value of the net assets of a particular
Portfolio shall be computed in the manner described in the
Company's Articles of Incorporation or in the Prospectus or
Statement of Additional Information respecting that
Portfolio as from time to time is in effect for the
computation of the value of such net assets in connection
with the determination of the liquidating value of the
shares of such Portfolio.
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The parties hereby confirm that the fees payable hereunder
shall be applied to each Portfolio as a whole, and not to
separate classes of shares within the Portfolios.
Term: The initial term of this Agreement (the "Initial Term")
shall be for a period commencing on the date this Agreement
is executed by both parties and ending on the date that is
one year after the Conversion Date. 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 without penalty (i) by provision of 60 days
advance written notice of nonrenewal to the other party
prior to the end of the Initial Term or the then-current
Rollover Period, (ii) by mutual agreement of the parties,
(iii) for "cause," as defined below, upon the provision of
60 days advance written notice by the party alleging cause,
or (iv) by provision of 90 days advance written notice of
termination during a Rollover Period.
For purposes of this Agreement, "cause" shall mean (a)
willful misfeasance, bad faith, gross negligence or reckless
disregard on the part of the party to be terminated with
respect to its obligations and duties set forth herein; (b)
multiple negligent acts on the part of the party to be
terminated which in the aggregate constitute a serious
failure to perform satisfactorily that party's obligations
hereunder; (c) a material breach of this Agreement that has
not been remedied for 45 days following receipt of written
notice of such breach from the nonbreaching party; or (d) a
"service standard deficiency," as defined below.
For purposes of this Agreement, a service standard
deficiency shall be defined as (i) any pattern of
substandard performance over a 60-day period with respect to
such service standards as the parties shall agree upon
relating to the duties and obligations of the Administrator
herein or to the duties and obligations of the Administrator
or an affiliate of the Administrator pursuant to any other
service agreement with the Company ("Service Standards") or
(ii) any "asset withdrawal," as defined below, by a
Shareholder which, in the aggregate, exceeds $1 million,
that can be reasonably attributed to a failure on the part
of the Administrator or an affiliate of the Administrator to
meet one or more Service Standards. For purposes of this
Agreement, "asset withdrawal" shall include any combination
of (i) a redemption of Company Shares and/or (ii) a
withdrawal of assets from any non-mutual fund account or
other mutual fund account held by a Company Shareholder that
is advised by the Company's investment adviser or an
affiliate of such investment adviser. A copy of the current
Service Standards that have been agreed upon by the parties
is attached hereto and made a part hereof.
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Notwithstanding the foregoing, after such termination, for
so long as the Administrator, with the written consent of
the Company, in fact continues to perform any one or more of
the services contemplated by this Agreement or any schedule
or exhibit hereto, the provisions of this Agreement,
including without limitation the provisions dealing with
indemnification, shall continue in full force and effect.
Compensation due the Administrator and unpaid by the Company
upon such termination shall be immediately due and payable
upon and notwithstanding such termination.
If, during the first six months of the Initial Term, for any
reason other than cause, as defined herein, the
Administrator is replaced as fund manager and administrator,
or if a third party is added to perform all or a part of the
services provided by the Administrator under this Agreement
(excluding any sub- administrator appointed by the
Administrator as provided in Article 7 hereof), then the
Company shall make a one-time cash payment, as liquidated
damages, to the Administrator equal to the balance due the
Administrator for the remainder of such Initial Term,
assuming for purposes of calculation of the payment that the
asset level of the Company on the date the Administrator is
replaced, or a third party is added, will remain constant
for the balance of such term.
If, during the second six months of the Initial Term, for
any reason other than cause, as defined herein, the
Administrator is replaced as fund manager and administrator,
or if a third party is added to perform all or a part of the
services provided by the Administrator under this Agreement
(excluding any sub- administrator appointed by the
Administrator as provided in Article 7 hereof), then the
Company shall make a one-time cash payment, as liquidated
damages to the Administrator equal to one-half of the
balance due the Administrator for the remainder of such
Initial Term, assuming for purposes of calculation of the
payment that the asset level of the Company on the date the
Administrator is replaced, or a third party is added, will
remain constant for the balance of such term.
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