EXHIBIT 99(h)(1)
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT made as of the 23rd day of November, 2002 between and
among The Saratoga Advantage Trust (the "Trust"), a Delaware business trust,
Saratoga Capital Management I, LLC ("Saratoga"), a Delaware limited liability
company and Orbitex Fund Services, Inc. ("OFS"), a New York corporation.
WHEREAS, the Trust is an open-end management investment company registered under
the Investment Company Act of 1940, as amended (the "1940 Act"), currently
comprised of seven separate investment portfolios (each a "Portfolio,"
collectively, the "Portfolios") as listed on Schedule A, as such Schedule may be
amended from time to time;
WHEREAS, Saratoga serves as investment manager to the Trust;
WHEREAS, the Trust has entered into a Distribution Agreement with OFS for the
distribution by OFS of certain classes of shares of beneficial interest (the
"Shares") in the Trust;
WHEREAS, certain employees of Saratoga will be registered with the National
Association of Securities Dealers, Inc. ("NASD") as representatives of OFS (such
persons shall hereinafter be referred to as "Registered Representatives") and
will be wholesaling the Portfolios' Shares;
WHEREAS, the Trust desires to retain OFS to assist it in performing certain
services with respect to the Shares of the Trust and OFS is willing to perform
such services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual agreements herein contained, the
parties agree as follows:
1. Services and Duties of OFS. OFS will serve as the Trust's administrative
services agent and further agrees to perform the specific administrative duties
and provide the specific administrative services for the Trust, as listed in
Exhibit A.
2. Services Provided by Saratoga. In furtherance of the responsibilities under
this Agreement, Saratoga will provide or cause the provision of certain
services, as listed in Exhibit B.
3. Compensation; Reimbursement of Expenses.
(a) The Trust shall pay OFS for the services provided under this Agreement
an annual fee, payable monthly, equal to 10.0 basis points on the average
monthly net assets in each Portfolio of the Trust, subject to an aggregate
annual minimum fee of $250,000 (the "Minimum Fee") and an aggregate annual
maximum fee of $350,000 (the "Maximum Fee") paid by all of the Portfolios of the
Trust. Such aggregate minimum and maximum annual fees are based on the seven (7)
Portfolios listed on Schedule A. The addition of any new portfolio that
increases the number of portfolios beyond the seven (7) Portfolios listed on
Schedule A as a result of mutual funds that are merged into the Trust that are
listed on Schedule B will be charged in accordance with Schedule B. The addition
of any other portfolio not listed on Schedule A or Schedule B will be subject to
fees in accordance with the first sentence of this paragraph 3. (a).
(b) All fees to OFS for the services described in this Agreement are
exclusive of out-of-pocket costs. OFS shall be reimbursed for the reasonable
out-of-pocket expenses incurred in providing the services hereunder.
Out-of-pocket expenses charged to the Portfolios include, but are not limited
to, Federal, State, and Local registration and filing fees, Trust board book
printing expenses, and reports provided by third party providers that are
authorized by the Trust. The out- of-pocket charges for Medallion services
include: NSCC setup, additional CUSIPs, NASD/state securities registration, NASD
filing fees, and overnight courier. For state registrations beyond three states,
additional initial state registration fees will be billed to the Trust at a cost
of $295, additional state registration renewals will be billed to the Trust at a
cost of $150, and additional sales reports (if required) will be billed to the
Trust at a cost of $25.
(c) If this Agreement becomes effective subsequent to the first day of a
month or shall terminate before the last day of a month, compensation for that
part of the month this Agreement is in effect shall be prorated in a manner
consistent with the calculation of the fees as set forth above.
4. Effective Date and Term.
(a) This Agreement shall become effective with respect to the Trust as of
the date first written above (or, if a particular Portfolio is not in existence
on that date, on the date OFS becomes the distributor of the Shares of such
Portfolio; Schedule A to this Agreement shall be deemed amended to include such
Portfolio and any classes of Shares of such Portfolio from and after such date).
(b) This Agreement shall continue for an initial three-year term and shall
continue thereafter for successive one-year terms unless terminated pursuant to
the provision of sub-section (c) or (d) of this Section 4.
(c) This Agreement shall automatically terminate upon termination of the
Distribution Agreement between the Trust and OFS. This Agreement may be
terminated at any time without payment of any penalty, upon 60 days' written
notice by the Trust pursuant to the vote of a majority of its Board of Trustees.
This Agreement may be terminated at any time without payment of any penalty upon
120 days' written notice by OFS. In any event, the provisions of Section 5 and 6
shall survive termination of this Agreement and continue in full force and
effect. Compensation due OFS and unpaid upon such termination shall be
immediately due and payable upon and notwithstanding such termination.
(d) Either the Trust or OFS shall have the right to immediately terminate
this Agreement, if (i) a material breach of any provision of this Agreement has
been committed by OFS or the Trust/Saratoga; (ii) the non-breaching party
delivers notice that the other party is in breach of any of its obligations
under this Agreement; and (iii) either (a) the action or inaction of the
breaching party giving rise to the cause for termination is not capable of being
remedied or (b) if such action or inaction is capable of being remedied, the
breaching party shall not have remedied such action or inaction within thirty
(30) days after such notice.
5. Standard of Care and Indemnification.
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(a) OFS shall give the Trust the benefit of its best judgment and efforts
in rendering its services to the Trust and, except as specifically provided
herein, shall not be liable for error of judgment or mistake of law, for any
loss arising out of any investment, or in any event whatsoever, provided that
nothing herein shall be deemed to protect, or purport to protect, OFS against
any liability to Saratoga or the Trust or to the security holders of the Trust
to which it would otherwise be subject by reason of willful misfeasance, bad
faith or negligence in the performance of its duties hereunder, or by reason of
reckless disregard of its obligations and duties hereunder.
(b) The Trust and Saratoga shall indemnify and hold OFS, its officers,
directors, employees, shareholders, affiliated persons (as such term is defined
in the 0000 Xxx) and agents (collectively the "OFS Indemnified Parties" and each
individually an "OFS Indemnified Party") harmless from and against any and all
losses, claims, damages, expenses and liabilities, joint or several (including,
but not limited to, any reasonable investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit, proceeding or claim), which such OFS Indemnified Party or OFS Indemnified
Parties may be or become subject to or liable for by reason of or in connection
with (i) the Agreement, (ii) OFS's provision of services pursuant to the
Agreement, (iii) any materially false or inaccurate information or data provided
by the Trust, Saratoga or one of its agents for use by OFS in providing its
services hereunder or under the Distribution Agreement, or (iv) any information
or data created by OFS that is materially changed by the Trust or Saratoga
without OFS's approval; provided, however, that an OFS Indemnified Party shall
not be entitled to indemnification hereunder to the extent, but only to the
extent, that it shall have been finally determined by a court of competent
jurisdiction that such loss, claim, damage, expense or liability was caused
directly and proximately by action or omission of OFS and that such action or
omission involved bad faith, negligence, reckless disregard of its obligations
hereunder, or intentional misconduct by OFS.
(c) OFS shall indemnify and hold Saratoga and the Trust, their officers,
directors, employees, shareholders, affiliated persons (as such term is defined
in the 0000 Xxx) and agents (collectively the "Saratoga Indemnified Parties" and
each individually a " Saratoga Indemnified Party") harmless from and against any
and all losses, claims, damages, expenses and liabilities, joint or several
(including, but not limited to, any reasonable investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit, proceeding or claim), which such Saratoga Indemnified Party or
Saratoga Indemnified Parties may be or become subject to or liable for by reason
of or in connection with (i) the Agreement, (ii) under the Securities Act of
1933, the 1934 Act, the 1940 Act, common law or otherwise, (iii) any breach of
any covenant or obligation of OFS contained in the Agreement, (iv) any failure
by OFS to comply with any laws applicable to its performance of services under
the Agreement, (v) any materially false or inaccurate information or data
provided by OFS to Saratoga or the Trust pursuant to OFS's obligations hereunder
or under the Distribution Agreement, (vi) any information or data provided by
Saratoga or the Trust that is materially changed by OFS without Saratoga's or
the Trust's approval or (vi) a final determination by a court of competent
jurisdiction that such loss, claim, damage, expense or liability was caused
directly or proximately by an action or omission of OFS involving bad faith,
negligence, reckless disregard of its obligations hereunder, or intentional
misconduct by OFS; provided, however, that a Saratoga Indemnified Party shall
not be entitled to indemnification hereunder to the extent, but only to the
extent, that it shall have been finally
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determination by a court of competent jurisdiction that such loss, claim,
damage, expense or liability was caused directly or proximately by an action or
omission of OFS involving bad faith, negligence, reckless disregard of its
obligations hereunder, or intentional misconduct by OFS; provided, however, that
a Saratoga Indemnified Party shall not be entitled to indemnification hereunder
to the extent, but only to the extent, that it shall have been finally
determined by a court of competent jurisdiction that such loss, claim, damage,
expense or liability was caused directly and proximately by action or omission
of Saratoga or the Trust and that such action or omission involved bad faith,
negligence, reckless disregard of the obligations hereunder of Saratoga or the
Trust, or intentional misconduct by Saratoga or the Trust.
(d) In order to provide for just and equitable contribution in
circumstances in which the terms of Section 5(b) or Section 5(c) are applicable,
but for any reason the indemnification provided for therein is held to be
unavailable, Saratoga, the Trust and OFS shall contribute to the aggregate
losses, claims, damages, expenses and liabilities (including, but not limited
to, any reasonable investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit,
proceeding or claim) which any of the OFS Indemnified Parties or Saratoga
Indemnified Parties (as defined above), respectively, may be subject to or
liable for in proportion to the relative fault of Saratoga or the Trust, on the
one hand, and OFS, on the other hand; provided, however, that in determining
relative fault, there shall be considered the relative benefits received by each
party from the transactions giving rise to the loss, claim, damage, expense or
liability, the parties' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances; provided, further, that in
no event shall OFS, Saratoga or the Trust be required to contribute in the
aggregate hereunder any amount in excess of the aggregate compensation received
by OFS for its services during the immediately preceding 12 month period.
Saratoga, the Trust and OFS shall not have any other right of contribution in
connection herewith.
(e) The applicable indemnified party, promptly and in any event within ten
(10) days after receipt of notice of commencement of any action, suit,
proceeding or claim in respect of which a claim for indemnification may be made
by it, shall notify the applicable indemnifying party in writing of the
commencement of such action, suit, proceeding or claim, enclosing a copy of all
papers served. However, the omission to so notify the applicable indemnifying
party of any such action, suit, proceeding or claim shall not relieve such
indemnifying party from any liability that it may have under Section 5(b) or
5(c), as applicable, of this Agreement except to the extent that the ability of
such indemnifying party to defend such action, suit, proceeding or claim is
materially adversely affected.
(f) In case any such action, suit, proceeding or claim for which indemnity
may be payable hereunder shall be brought against an OFS Indemnified Party or
Saratoga Indemnified Party, as applicable (an "Indemnified Party"), and such
Indemnified Party shall notify the applicable indemnifying party of the
commencement thereof, such indemnifying party shall be entitled to participate
in, and to the extent that such indemnifying party shall wish to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnified Party,
subject to the further provisions of this paragraph. After written notice from
such indemnifying party to such Indemnified Party of its election to so assume
the defense thereof, such indemnifying party shall not be liable to the
applicable Indemnified Parties for any additional attorneys' fees or other
expenses of litigation, other than reasonable costs of investigation
subsequently incurred by such Indemnified Parties in connection with the defense
thereof, unless (i) the employment of counsel by such Indemnified Parties has
been authorized in writing by such indemnifying party, such authorization not to
be unreasonably withheld or delayed; (ii) such Indemnified Parties shall have
obtained a written opinion of counsel reasonably acceptable to such indemnifying
party that there
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exists a conflict of interest between such Indemnified Parties and the relevant
party in the conduct of the defense of such action or that there are one or more
defenses available to such Indemnified Parties that are unavailable to such
indemnifying party (in which case such indemnifying party shall not have the
right to direct the defense of such action on behalf of such Indemnified
Parties); or (iii) such indemnifying party shall not in fact have employed
counsel reasonably satisfactory to such Indemnified Parties to assume the
defense of such action, in each of which cases the reasonable fees and expenses
of counsel utilized by such Indemnified Parties shall be at the expense of such
indemnifying party, it being understood, however, that such indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for an Indemnified Party,
which firm shall be designated in writing by the Indemnified Party.
Notwithstanding the foregoing, under the circumstances described in clause (ii)
above, the applicable Indemnified Parties shall be entitled to retain an
additional law firm, in any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, provided such Indemnified Parties have
obtained a written opinion of counsel reasonably acceptable to the indemnifying
party that a conflict of interest exists that would preclude the use of a single
law firm, in which case the indemnifying party shall be liable for the
reasonable fees and expenses of counsel designated by the Indemnified Parties in
writing. All such fees and expenses which are at the expense of an indemnifying
party hereunder shall be promptly paid by such indemnifying party.
(g) Nothing in this Agreement shall be construed as limiting an
Indemnified Party's rights to employ counsel at its own expense or to obtain
indemnification for amounts reasonably paid to adverse claimants in satisfaction
of any judgments or in settlement of any actions, suit, proceeding or claims,
except that no party hereto shall be liable for any settlement of any action,
suit, proceeding or claim effected without its written consent. 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 an Indemnified Party without such Indemnified Party's written consent.
6. Confidentiality. During the term of this Agreement, the Trust, OFS and
Saratoga may have access to confidential information relating to such matters as
a party's business, trade secrets, systems, procedures, manuals, products,
contracts, personnel, and clients. As used in this Agreement, "Confidential
Information" means information belonging to a party that is of value to that
party and the disclosure of which could result in a competitive or other
disadvantage to that party. Confidential Information includes, without
limitation, financial information, proposal and presentations, reports,
forecasts; inventions, improvements and other intellectual property; trade
secrets; know-how; designs, processes or formulae; software; market or sales
information or plans; customer lists; and business plans, prospects and
opportunities (such as possible acquisitions or dispositions of businesses or
facilities). Confidential Information includes information developed by a party
hereto in the course of engaging in the activities provided for in this
Agreement, unless: (i) the information is or becomes publicly known through
lawful means; (ii) at the time of receipt the information was already actually
known to the other party; or (iii) the information is disclosed to the other
party without a confidential restriction by a third party who rightfully
possesses the information and did not obtain it, either directly or indirectly,
from another party hereto, or any of its respective principals, employees,
affiliated persons, or
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affiliated entities. The parties understand and agree that all Confidential
Information shall be kept confidential by the other both during and after the
term of this Agreement. The parties further agree that they will not, without
the prior written approval by the other party, disclose such Confidential
Information, or use such Confidential Information in any way, either during the
term of this Agreement or at any time thereafter, except as required in the
course of this Agreement and as approved by the other party or as required by
law.
7. Record Retention and Confidentiality. OFS shall keep and maintain on behalf
of the Trust all books and records which the Trust and OFS are, or may be,
required to keep and maintain in connection with the services to be provided
hereunder pursuant to any applicable statutes, rules and regulations, including
without limitation Rules 31a-1 and 31a-2 under the 1940 Act. OFS further agrees
that all such books and records shall be the property of the Trust and to make
such books and records available for inspection by the Trust, by Saratoga, or by
the SEC at reasonable times and otherwise to keep confidential all books and
records and other information relative to the Trust and its shareholders; except
when requested to divulge such information by duly-constituted authorities or
court process.
8. Regulation S-P. OFS agrees to make all reasonable efforts to adhere to the
Trust's policy regarding the use of Portfolio shareholder and potential
shareholder information as required by Regulation S-P. OFS shall be free to
share information regarding Portfolio shareholders and potential Portfolio
shareholders, on an as needed basis in order to fulfill its role as
administrator, with other authorized agents of the Portfolios including service
providers and brokers. OFS shall also be free to provide such information as
required by regulatory agencies, law enforcement or in accordance with a court
order.
9. Rights of Ownership. All computer programs and procedures developed to
perform the services to be provided by OFS under this Agreement are the property
of OFS. All records and other data except such computer programs and procedures
are the exclusive property of the Trust and all such other records and data will
be furnished to Saratoga and/or the Trust in appropriate form as soon as
practicable after termination of this Agreement for any reason.
10. Return of Records. OFS may at its option at any time, and shall promptly
upon the demand of Saratoga and/or the Trust, turn over to Saratoga and/or the
Trust and cease to retain OFS's files, records and documents created and
maintained by OFS pursuant to this Agreement so long as OFS shall be able to
retain photocopies of such documents to the extent needed by OFS in the
performance of its services or for its legal protection. If not so turned over
to Saratoga and/or the Trust, such documents and records will be retained by OFS
for six years from the end of the fiscal year of the Trust for which they were
created. At the end of such six-year period, such records and documents will be
turned over to Saratoga and/or the Trust unless the Trust authorizes in writing
the destruction of such records and documents.
11. Representations of the Trust. The Trust represents and warrants to OFS that
this Agreement has been duly authorized by the Trust and, when executed and
delivered by the Trust, will constitute a legal, valid and binding obligation of
the Trust, enforceable against the Trust in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
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12. Representations of Saratoga. Saratoga represents and warrants to OFS that
this Agreement has been duly authorized by Saratoga and, when executed and
delivered by Saratoga, will constitute a legal, valid and binding obligation of
Saratoga, enforceable against Saratoga in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
13. Representations of OFS. (a) OFS represents and warrants that this Agreement
has been duly authorized by OFS and, when executed and delivered by OFS, will
constitute a legal, valid and binding obligation of OFS, enforceable against OFS
in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
(b) OFS further represents and warrants that it is a member of the NASD
and agrees to abide by all of the rules and regulations of the NASD, including,
without limitation, its Conduct Rules. OFS agrees to comply with all applicable
federal and state laws, rules and regulations. OFS agrees to notify Saratoga
immediately in the event of its expulsion or suspension by the NASD. Expulsion
of OFS by the NASD will automatically terminate this Agreement immediately
without notice. Suspension of OFS by the NASD will terminate this Agreement
effective immediately upon written notice of termination to OFS from Saratoga.
14. Notices. All notices or other communications hereunder to a party hereto
shall be in writing and shall be deemed sufficient if mailed to the Trust at the
following address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, XX 00000-0000,
Attention: President; to Saratoga at the following address: 0000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx Xxxx, XX 00000-0000, Attention: President, with a copy to the
Trust's counsel; and to OFS at the following address: 000 Xxxxx Xxxxxxx,
Xxxxxxxxx, XX 00000, Attention: President with a copy to General Counsel or at
such other address as such party may designate by written notice to the other,
or in either case if sent by telex, telecopier, telegram or similar means of
same day delivery (with a confirming copy by mail as provided herein).
15. Headings. Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
16. Assignment. This Agreement and the rights and duties hereunder shall not be
assignable by any of the parties hereto without the specific written consent of
the other parties, except that Saratoga may assign this Agreement to
Orbitex-Saratoga Capital Management, LLC or such other business entity to which
Saratoga may succeed.
17. Governing Law and Arbitration. This Agreement shall be governed by the laws
of the State of New York without giving effect to principles of conflicts of
laws. In addition, New York shall serve as the jurisdiction, venue or situs for
any action dispute, resolution, or proceeding. Any controversy or claim arising
out of, or related to, this Agreement, its termination or the breach thereof,
shall be settled by binding arbitration by three arbitrators (or by fewer
arbitrator(s), if the parties subsequently agree to fewer arbitrator(s)) in the
City of New York in accordance with the rules then obtaining of the American
Arbitration Association, the arbitrators'
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decision shall be binding and final, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
18. Use of Saratoga Name. Subject to approval of the content by Saratoga, the
Trust and Saratoga will allow OFS's non-exclusive use of the "Saratoga" name and
"Saratoga Advantage Trust" name solely in connection with OFS's website, trade
advertisements, client lists and mutual fund industry conferences and displays.
OFS agrees and acknowledges that Saratoga, the Trust and/or affiliates own all
right, title, and interest in the name "Saratoga" and "Saratoga Advantage Trust"
and will only use the "Saratoga" name as stated herein.
19. Services Not Exclusive. The Trust and Saratoga hereby acknowledge that the
services provided hereunder by OFS are not exclusive. Nothing herein shall be
deemed to limit or restrict OFS's right, or the right of any of OFS's officers,
directors or employees to engage in any other business or to devote time and
attention to the management or other aspects of any other business, whether of a
similar or dissimilar nature, or to render services of any kind to any other
corporation, fund, firm, individual or association, as well as provide
distribution services to any other mutual fund, including any fund which may
directly compete with or be similar to Saratoga.
20. No Liability of Shareholders. This Agreement is executed by the Trustees of
the Trust, not individually, but in their capacity as Trustees under the
Declaration of Trust made April 4, 1994. None of the shareholders, Trustees,
officers, employees, or agents of the Trust shall be personally bound or liable
under this Agreement, nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder but only to the property of
the Trust and, if the obligation or claim relates to the property held by the
Trust for the benefit of one or more but fewer than all Portfolios, then only to
the property held for the benefit of the affected Portfolio.
21. Severability. If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if this Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
22. Counterparts. This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed all as of the day and year first above written.
THE SARATOGA ADVANTAGE TRUST
By:_____________________________________
Title:__________________________________
SARATOGA CAPITAL MANAGEMENT I, LLC
By:_____________________________________
Title:__________________________________
ORBITEX FUND SERVICES, INC.
By:_____________________________________
Title:__________________________________
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SCHEDULE A
TO THE AGREEMENT BETWEEN AND AMONG THE SARATOGA ADVANTAGE
TRUST, SARATOGA CAPITAL MANAGEMENT AND
ORBITEX FUND SERVICES, INC.
THE SARATOGA ADVANTAGE TRUST
U.S. Government Money Market Portfolio
Investment Quality Bond Portfolio
Municipal Bond Portfolio
Large Capitalization Value Portfolio
Large Capitalization Growth Portfolio
Small Capitalization Portfolio
International Equity Portfolio
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SCHEDULE B
TO THE AGREEMENT BETWEEN AND AMONG THE SARATOGA ADVANTAGE
TRUST, SARATOGA CAPITAL MANAGEMENT AND
ORBITEX FUND SERVICES, INC.
Fund Listing:
Saratoga Health & Biotechnology
Saratoga Financial Services
Saratoga Info-Tech & Communication
Saratoga Mid-Cap Value
Saratoga Energy and Basic Materials
For the services rendered by OFS pursuant to this Agreement, the Trust shall pay
OFS within ten (10) days after receipt of an invoice from OFS at the beginning
of each month, a fee equal to the greater of the following, for each series of
the Trust listed on this Schedule B:
NET ASSET CHARGE (based upon prior month average net assets):
Assets up to $100 million......................... 10 basis points (.10%)
Assets from $100 million to $250 million.......... 8 basis points (.08%)
Assets from $250 million to $500 million ......... 5 basis points (.05%)
Greater than $500 million on...................... 3 basis points (.03%)
OR
MINIMUM FEE:
$40,000 per Portfolio per year
On each annual anniversary date of this Agreement, the fees enumerated above may
be increased by the change in the Consumer Price Index for the Northeast region
(CPI) for the twelve-month period ending with the month preceding such annual
anniversary date. Any CPI increases not charged in any given year may be
included in prospective CPI fee increases in future years.
OUT OF POCKET EXPENSES
Fund Administration out of pocket expenses charged to the Portfolios
include, but are not limited to, Federal, State and Local registration and
filing fees. Board Book printing expenses, reports provided by third party
providers (Fund Station, Lipper, Morningstar, and others). The out-of-pocket
charges for Medallion services include NSCC set up, additional CUSIPs,
NASD/state securities registration, NASD filing fees and overnight courier.
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Extraordinary legal administration services to the trust will be charged at an
hourly rate of $150. (Extraordinary services are outline in the contract)
STATE REGISTRATION (BLUE SKY) FEES
The fees enumerated above include the initial state registration, renewal and
maintenance of registrations for three (3) states. Each additional state
registration requested will be subject to the following fees:
Initial registration ............... $295.00
Registration renewal ............... $150.00
Sales reports (if required) ........ $ 25.00
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EXHIBIT A
Services and Duties of Orbitex Fund Services, Inc.
A. Medallion Distribution Services
(a) Legal review and principal sign-off of Portfolio marketing materials and
other sales related materials to ensure compliance with the advertising rules of
the relevant regulatory authorities and file such materials, and obtain such
approvals for their use as may be required by the SEC or the NASD. OFS will
forward all NASD comments on marketing materials to Saratoga.
(b) Forward sales related complaints concerning the Portfolios to Saratoga.
(c) Coordinate registration of the Portfolios with the National Securities
Clearing Corporation ("NSCC") and file required Fund/SERV reports with the NSCC.
(d) Provide advice and counsel to the Trust with respect to regulatory matters
regarding legal review and principal sign off of Portfolio marketing material
and other sales related materials, broker/dealer and distribution related
issues, including monitoring regulatory and legislative developments that may
affect the Portfolios and assist the Trust in routine regulatory examinations or
investigations, or litigation.
(e) Prepare quarterly board materials with regard to sales and other
distribution related data reasonably requested by the Board of Trustees.
(f) Prepare materials for the Board of Trustees supporting the annual renewal of
the Distribution Agreement.
(g) Provide all necessary Blue Sky services utilizing ClearSky or another
provider acceptable to the Trust, a third-party provider, on behalf of Saratoga,
including but not limited to: tracking all sales per state to registered
amounts; filing all required registration materials; and maintaining fund
registrations in accordance with state securities laws. Work with Saratoga
personnel and ClearSky to ensure that the Portfolios are in full compliance with
any applicable state regulatory requirements.
(h) Perform sales cap testing on an individual Portfolio basis as required by
the NASD and related regulatory and compliance reports, if any.
(i) Keep and maintain all books and records relating to its services in
accordance with Rule 31a-1 and Rule 31a-2 under the 1940 Act.
13
B. Legal Administration Services
OFS will provide the following routine legal administration services
("Routine Administrative Services"):
1. Corporate and Secretarial Services
(a) Provide the necessary complement of Assistant Secretaries for the Trust.
(b) Maintain general corporate calendar and track all legal and compliance
requirements through annual cycles.
(c) Prepare board meeting materials (four (4) quarterly board meetings per
year), including but not limited to:
o Prepare agenda and background materials for legal approval,
including explanatory memorandums and resolutions
o Make presentations
o Monitor annual approval requirements
o Prepare extensive background material for annual review of advisory
fees, major corporate structural changes, etc.
o Prepare minutes
o Follow-up on matters raised at meetings
o Keep Trustees apprised of important and relevant industry
developments
o Prepare treasury and compliance reports
(d) Maintain Agreement and Declaration of Trust and By-Laws of the Trust.
(e) Draft contracts, assist in negotiation and planning, as appropriate. For
example negotiate, draft and keep current the following contracts: (i)
investment advisory and sub-advisory contracts; (ii) distribution agreement;
(iii) bank agreements; (iv) broker/dealer agreements; (v) transfer agency
agreement; (vi) custody agreement; (vii) administration
agreement/sub-administration agreement; (viii) 12b-1 plans and related
agreements; (ix) shareholder servicing plans and related agreements; (x) XXX
custodian agreements; (xi) bi-party repurchase agreements; (xii) tri-party
repurchase agreements; (xiii) futures account agreement and procedural
safekeeping agreement; (xiv) loan agreements; and (xv) various other routine
agreements and amendments.
2. SEC and Public Disclosure Assistance
(a) Prepare and file via XXXXX one annual amendment to the Trust's registration
statement, including updating prospectuses and statement of additional
information (not including any amendment requiring major prospectus revisions or
the addition of new portfolios or classes).
(b) Review Form N-SAR, Form 24F-2, annual and semi-annual shareholder reports
for legal disclosure requirements.
14
(c) Monitor fidelity bond and directors' and officers' errors and omissions
policies and file such fidelity bond with the Securities and Exchange
Commission.
(d) Provide legal assistance for shareholder communications.
3. Legal Consulting and Planning
(a) Provide general legal advice on matters relating to portfolio management,
portfolio operations, mutual fund sales, development of advertising materials,
changing or improving prospectus disclosure, and any potential changes in the
fund's investment policies, operations, or structure.
(b) Provide general legal advice on reasonable routine banking, fiduciary,
corporate and securities law issues.
(c) Maintain a continuing awareness of significant emerging regulatory and
legislative developments which may affect the Portfolios, update the investment
adviser on those developments, and provide related planning assistance.
(d) Develop or assist in developing guidelines and procedures to improve overall
compliance by the Trust and its various agents.
(e) Provide advice with regard to Portfolio litigation matters, routine Trust
examinations and investigations by regulatory agencies.
(f) Provide advice regarding long term planning for the Trust including the
creation of new portfolios, corporate structural changes, mergers, acquisitions,
and other asset gathering plans including new distribution methods.
(g) Maintain effective communications with Trust counsel and counsel to the
"non-interested" Trustees.
(h) Create and implement timing and responsibility system for outside legal
counsel when necessary to implement major projects and the legal management of
such projects.
(i) Monitor activities and billing practices of outside counsel performing
services for the Trust or in connection with related Portfolio activities.
4. Compliance
(a) Consulting regarding all testing that is done by the agents of the Trust to
assist the adviser in complying with Portfolio prospectus guidelines and
limitations, 1940 Act requirements, and Internal Revenue Code requirements.
(b) Jointly create Compliance Manuals and workshops for advisory personnel with
the agents of the Trust or investment adviser.
15
(c) Consultation and advice for resolution of compliance questions along with
Trust counsel, the investment adviser and the fund accountant.
(d) Be actively involved with the management of SEC and other regulatory
examinations.
(e) Assist portfolio managers with compliance matters including reviewing the
Compliance Manual on a regular basis and attending compliance meetings with the
portfolio managers.
(f) Assist in developing guidelines and procedures to improve overall compliance
by the Trust and its various agents.
(g) Maintain legal liaison with and provide legal advice and counsel to the
Trust regarding its relationships, contractual or otherwise, with the various
Trust agents, such as the investment adviser, investment sub-adviser, custodian,
transfer agent, and auditors with respect to their activities on behalf of the
Trust.
(h) Provide advice regarding all Portfolio distribution arrangements for
compliance with applicable banking and broker/dealer regulations.
(i) Maintain the Trust's Code of Ethics and administer, with assistance from the
agents of the Trust, compliance by the Trustees, officers and "access persons"
under the terms of the Trust's Code of Ethics and Securities and Exchange
Commission regulations.
* * *
OFS is willing to provide any extraordinary legal administration services
("Extraordinary Legal Administrative Services") to the Trust. All of the
extraordinary legal functions set forth below may be accomplished wholly or
partially by OFS depending upon the circumstances (e.g., work flow and timing
demands) surrounding each request.
Extraordinary Legal Administration Services to the Trust will be charged
in an hourly rate of $150. Extraordinary Legal Administrative Services may,
depending upon the circumstances, include the following:
(a) Shareholder Meetings
o Draft Proxies
o Organize, attend and keep minutes
o Work with the Transfer Agent on solicitations and vote tabulation
o Provide legal presence at meetings
(b) Draft Proxy/Solicitation Documents on Form N-14 (Fund Mergers).
(c) An annual post-effective amendment that involves major prospectus revisions
or the addition of new investment portfolios or classes.
16
(d) Board meeting materials for significant corporate restructuring or other
major changes as well as more than four board meetings during a twelve month
period.
(e) More than one Post-Effective Amendment in any twelve month period.
(f) Advice regarding conversion of pooled funds and certain other bank specific
advice.
(g) Monitor and participate in the preparation of no-action requests and
application documents for exemptive orders.
17
C. Financial Administration Services
1. Financial Administration/Compliance
(a) Provide the appropriate complement of Assistant Treasurers to assume certain
specified responsibilities (these functions will be based upon the day to day
work completed by knowledgeable staff assembled by Saratoga including the fund
accountant).
(b) Prepare and file, with assistance from the agents of the Trust: (i),
unaudited financial statements and schedules of investments as required for
annual and semi-annual reports; (ii) XXXXX on-line filings related to annual and
semi-annual reports; (iii) XXXXX on-line filings related to Form N-SAR; and (iv)
XXXXX on-line filings related to Form 24F-2
(c) Calculate with assistance from the agents of the Trust, Portfolio
performance and Saratoga's asset allocation models' performance, and report to
outside services as directed by Trust management.
(d) Prepare, with assistance from the agents of the Trust, mutually agreed upon
financial materials for review by the Board of Trustees such as: distribution
summaries, deviations of xxxx-to-market valuation and amortized cost monitoring
for the money market funds.
(e) Monitor, with assistance from the agents of the Trust, compliance with the
following: each Portfolio's investment limitations and restrictions (e.g.,
issuer or industry diversification, etc.) listed in the current Prospectus and
Statement of Additional Information; each Portfolio's requirements under Section
851 of the Internal Revenue Code for qualification as a regulated investment
company (e.g., 90% income, diversification tests); approved issuers' listings
for repurchase agreements, Rule 17a-7 and Rule 12d-3 reporting.
(f) Perform, with assistance from and based upon trial balances and portfolio
holdings supplied by the agents of the Trust, the following additional
compliance services: monthly tax qualification testing, including gross income
tests, and 25% and 50% asset diversification tests; 1940 Act testing, including
diversification, illiquid securities and investments in other investment
companies; consultation and advising to remedy compliance issues.
(g) Provide, with assistance from the agents of the Trust, all the necessary tax
compliance duties and services, including but not limited to: 90% minimum
distribution test; 50% assets test for tax-exempt funds; 50% asset test for
foreign tax credit pass through; identification of "private activity" tax
exempt; identification of passive foreign investment companies; and
identification of foreign currency transactions.
(h) Calculate, with assistance from the agents of the Trust, Portfolio expense
projections, revising accruals as needed. Review, on a monthly basis, expenses
based on actual charges annualized and accrued daily, including expenses based
on a percentage of the Portfolio's average daily net assets (advisory and
administrative fees).
18
(i) Calculate, with assistance from the agents of the Trust, the monthly
management and advisory fees for each Portfolio, such calculation to be approved
for payment by an officer of the Trust.
(j) Review and monitor, with assistance from the agents of the Trust,
xxxx-to-market comparisons and Rule 2a-7 requirements for money market funds.
(k) Provide mutual fund industry fee and performance information, as needed for
Board materials and the annual report management discussion and analysis, from
its own resources to the extent available or otherwise from resources acceptable
to the Trust provided that any charges associated with information provided by
third parties shall be paid by the Trust.
(l) Assist (along with the fund accountant) the Trust's adviser in valuing
securities which are not readily salable.
(m) Assist with and coordinate, with assistance from the agents of the Trust,
communications and data collections with regard to any regulatory examinations
or investigations, and yearly audits by independent accountants and be involved
with the planning and conducting of audits and examinations.
2. CDSC Financing Arrangement
(a) Recording on a Portfolio-by-Portfolio basis of all receivables purchased.
(b) Calculating and accounting for, on a Portfolio-by-Portfolio basis, all
collections related to the purchased receivables, including contingent deferred
sales charges and Rule 12b-1 fees.
(c) Maintenance of required records directly related to the purchased
receivables and the ensuing collections, including furnishing upon request any
documents as needed by the seller or purchaser.
(d) Provide a detailed monthly report summarizing receivables activity,
including calculations of fees and interest as required by the program
documents.
(e) Perform and monitor compliance testing as required by the program documents,
providing additional monthly reports to document compliance requirements.
(f) Provide control point between the purchaser, seller and service provider(s).
(g) Report receivable activity to the Board of Trustees.
(h) Respond to inquiries of the purchaser and seller.
(i) Participate in the communication among the purchaser, seller, service
provider(s), and outside auditors as needed, in connection with the review of
purchased receivables activity.
19
(j) Document procedures as identified and developed with all interested parties,
including auditors, associated with the purchased receivables process.
20
EXHIBIT B
Services Provided by Saratoga Capital Management
(a) Complete or cause the Trust's other service providers to complete the August
31, 2002 year-end audit process, including but not limited to, the preparation
and timely filing of all tax related documents and financial statements.
(b) Cause the Trust's other service providers to provide all spreadsheets and
procedures currently in place relating to the Trust's treasury/financial
administration, with historical copy and formulas intact, to OFS as soon as
practicable after the effectiveness of this Agreement.
(c) Cause the Trust's other service providers to furnish any and all information
to and assist OFS in taking any other actions that may be reasonably necessary
in connection with OFS providing those services listed in Exhibit A.
(d) Cause the Trust's transfer agent to provide sales of the Shares to OFS or
Clear Sky to assure compliance with applicable state securities and Blue Sky
laws.
(e) Cause the Trust's transfer agent to give necessary information for the
preparation of quarterly reports in a form satisfactory to OFS regarding Rule
12b-1 fees, front-end sales loads, back-end sales loads, if applicable, and
other data regarding sales and sales loads as required by the 1940 Act or as
requested by the Board of Trustees of the Trust.
(f) Cause the Trust's transfer agent to provide OFS with all necessary
information, including all historical information, so that OFS can calculate the
maximum sales charges payable by the Portfolios pursuant to the NASD's Conduct
Rules and the actual sales charges paid by the Portfolios, if applicable; and
cause the Trust's transfer agent to provide such information in a form
satisfactory to OFS no less often than monthly for every Portfolio and on a
daily basis for any Portfolio where OFS determines that the remaining limit is
approaching zero, if applicable.
(g) Submit all sales literature and advertisements to OFS for legal/compliance
review in advance of use, and incorporate such changes as OFS may reasonably
request therein. OFS will file such materials and obtain such approvals for
their use as may be required by the SEC or NASD. For purposes of this Agreement
"sales literature" and "advertisements" mean brochures, letters, electronic
media, training materials and dealers' guides, materials for oral presentations
and all other similar materials, whether transmitted directly to potential
shareholders or published in print or audio-visual media, but does not include
generic materials that do not mention the Portfolios or the Shares.
(h) Monitor the performance of the Registered Representatives with respect to
compliance with the NASD's Conduct Rules, and in particular the NASD's
interpretation of the applicability of Rule 3040 of the NASD's Conduct Rules to
certain activities of persons registered as representatives with an NASD member
and as an investment adviser with the SEC, and who conduct their advisory
activities away from their NASD employer/member as described in the NASD's
Special Notice to Members 94-44.
21
(i) Identify persons employed by Saratoga that will become Registered
Representatives and assist OFS in ascertaining that such persons meet all
requirements established for being a Registered Representative by the SEC, NASD
and relevant state securities commissions.
(j) (i) Identify persons to enter into appropriate agreements with OFS for the
solicitation of Portfolio Shares, such as securities dealers, financial
institutions and other industry professionals such as investment advisers and
estate planning firms (collectively referred to herein as "Selling Broker
Dealers"); (ii) assist OFS in ascertaining that such persons meet any
requirements established for Selling Broker-Dealers by law, the Trust or OFS;
(iii) request that OFS enter into selling agreements with each such Selling
Broker-Dealer ("Selling Agreements") (Exhibit C), such request to be signed by a
duly authorized officer or employee of Saratoga who shall be a person listed on
Exhibit D until such time as Saratoga amends or supplements such list, and
Saratoga will assist in the performance of the necessary due diligence to
determine the qualification of the prospective Selling Broker-Dealer pursuant to
clause (ii) above; (iv) submit such Selling Broker-Dealer request and all
related due diligence materials that Saratoga may have to OFS; (v) assist OFS in
coordinating the execution of Selling Agreements between OFS and the Selling
Broker-Dealers; and (vi) use its best efforts to insure that no sales are
executed or processed prior to obtaining an executed Selling Agreement from the
Selling Broker-Dealer making the sale.
(k) Provide administrative support (e.g. telemarketing and fulfillment services)
with regard to, and use its best efforts to monitor the performance of, the
Selling Broker-Dealers in their solicitation and execution of sales of the
Shares and all activities related thereto, including compliance with applicable
law, the Selling Agreements, and the multi-class procedures.
(l) Use reasonable efforts to monitor the Selling Broker-Dealers in their
resolution of as of trades with respect to Shares of the Portfolios in order to
mitigate the risk of loss to OFS and the Portfolios from such as of trades.
(m) Report to OFS, to the extent that Saratoga is aware, any and all actions or
inactions by any Selling Broker-Dealer that (i) fail to comply with the terms of
any Selling Agreements, (ii) violate any applicable laws of any governmental
authorities, including the NASD's Conduct Rules, or (iii) violate any other
agreements or procedures with which such Selling Broker-Dealer is required to
comply.
(n) (i) Provide the form of confirmation statement to be used for sale of the
Shares to OFS and provide or cause to be provided to customers of the Selling
Broker-Dealers and to the Selling Broker-Dealers such confirmations of all
transactions in the Shares as may be required by the 1934 Act and the Selling
Agreements, and (ii) use reasonable efforts to monitor the Trust's transfer
agent in its preparation and mailing of such confirmations regarding the sales
of the Shares and report to OFS any deficiencies of which Saratoga is aware in
the transfer agent's performance of such activities.
(o) Report sales-related complaints to OFS and consult with OFS concerning the
manner in which such complaints will be addressed.
22
(p) Provide OFS with copies of, or access to, any documents that OFS may
reasonably request and will notify OFS as soon as possible of any matter
materially affecting OFS's performance of its services under this Agreement.
23
EXHIBIT C
FORM OF SELLING AGREEMENT
DEALER AGREEMENT
THE SARATOGA ADVANTAGE TRUST
FROM:
TO:
Orbitex Funds Distributor, Inc.
Xxx Xxxxxxx Xxxxx, Xxxxx 0X
Xxxxxxxx, XX 00000
Gentlemen:
We (the "Dealer") desire to enter into an agreement with Orbitex Funds
Distributor, Inc. (the "Distributor") for the sale and distribution of the
shares of the Saratoga Advantage Trust, an open-end investment company in series
form (hereinafter referred to as the "Trust" and each series thereof as a
"Portfolio") of which Orbitex Funds Distributor, Inc. is the Distributor
(hereinafter referred to as the "Shares"). Upon acceptance of this Agreement by
Distributor, Dealer understands that Dealer may offer and sell Shares subject,
however, to all of the terms and conditions hereof and to Distributor's right,
without notice, to suspend or terminate the sale of the Shares of any one or
more of the Portfolios.
1. Dealer understands that the Shares will be offered and sold at the public
offering price in effect in accordance with the terms of the then-current
prospectus at the time the order for such Shares is confirmed and accepted
by Distributor. All purchase requests and applications submitted by Dealer
are subject to acceptance or rejection in Distributor's sole discretion,
and, if accepted, each purchase will be deemed to have been consummated at
the office of the Trust's shareholder servicing agent.
2. Dealer herein certifies that Dealer is registered as a broker-dealer under
the Securities Exchange Act of 1934 and is a member of the National
Association of Securities Dealers, Inc. ("NASD") and agrees to maintain
its membership in the NASD during the full force and effect of this
Agreement. For as long as this Agreement is in full force and effect,
Dealer agrees to abide by all of the rules and regulations of the
Securities and Exchange Commission ("SEC") and the NASD which are binding
upon underwriters and dealers in the distribution of the securities of
open-end investment companies, including without limitation, Section 2830
of the NASD Conduct Rules, all of which are incorporated herein as if set
forth in full. The parties to this Agreement acknowledge that they are
financial institutions subject to the
24
USA Patriot Act of 2001 and the Bank Secrecy Act (collectively, the "AML
Acts"), which require among other things, that financial institutions
adopt compliance programs to guard against money laundering. The parties
further acknowledge that they are in compliance and will continue to
comply with the AML Acts and applicable AML rules of self-regulatory
organizations, including Rule 3011 of the National Association of
Securities Dealers, Inc., in all relevant respects. We agree to cooperate
with you to satisfy your AML due diligence policies, which may include
annual AML compliance certifications, periodic AML due diligence reviews
and/or other requests deemed necessary to ensure our compliance with the
AML regulations. Dealer agrees that it will not sell or offer for sale
Shares in any state or jurisdiction where Shares have not been qualified
for sale.
3. Dealer will offer and sell Shares of any Portfolio only in accordance with
the terms and conditions of the Trust's then-current Prospectus and Dealer
will not make representations which are not included in said Prospectus or
in any authorized supplemental material supplied by Distributor and/or the
Trust or its agents. Dealer will use its best effort in the development
and promotion of sales of Shares and agrees to be responsible for the
proper instruction and training of all sales personnel employed by Dealer,
in order that the Shares will be offered in accordance with the terms and
conditions of this Agreement and all applicable laws, rules and
regulations. Dealer agrees to hold Distributor harmless and indemnify
Distributor in the event that Dealer, or any of Dealer's sales
representatives, should violate any law, rule or regulation, or any
provisions of this Agreement, which violation may result in Liability to
Distributor, the Trust or any Portfolio. All expenses which Dealer may
incur in connection with Dealer's activities under this Agreement shall be
borne by Dealer.
4. Payments for purchases of Shares made by wire order from Dealer shall be
made to Distributor's designated agent, and received by Distributor's
designated agent, together with all necessary applications and other
documents required to establish an account within three business days
after the acceptance of Dealer's order or such shorter time as may be
required by law. If such timely payment is not received by Distributor's
designated agent, Dealer understands and agrees herein that Distributor
reserves the right, without notice, forthwith to cancel the sale, or, at
Distributor's option, to sell back to the Portfolio the Shares ordered by
Dealer, in which latter case, Dealer will be held responsible for any
loss, including loss of profit, suffered by Distributor or Distributor's
designated agent, resulting from Dealer's failure to make the aforesaid
payment. Where sales of Portfolio Shares are contingent upon the
Portfolio's receipt of funds in payment therefore, Dealer will forward
promptly to Distributor, or Distributor's designated agent, any purchase
orders and/or payments received by Dealer from investors.
5. Dealer agrees to purchase Shares only from Distributor or from Dealer's
customers. If Dealer purchases Shares from Distributor, Dealer agrees that
all such purchases shall be made only to cover orders received by Dealer
from Dealer's customers, or for Dealer's own bona fide investment. If
Dealer purchases Shares from Dealer's customers, Dealer agrees to pay such
customers not less than the applicable repurchase price as established by
the then current applicable Prospectus.
6. Distributor's obligations to Dealer under this Agreement are subject to
all the provisions of any distributorship agreement entered into between
Distributor and the Trust. Dealer
25
understands and agrees herein that in Dealer's performing of its services
covered by this Agreement that Dealer is acting as a principal, and
Distributor is in no way responsible for the manner of Dealer's
performance or for any of Dealer's acts, employees or representatives as
Distributor's agent, partner or employee, or the agent or employee of the
Trust.
7. Distributor, its affiliates, and the Trust shall not be liable for any
loss, expenses, damages, costs or other claims arising out of any
redemption or exchange pursuant to telephone instructions from any person,
or Distributor's refusal to execute such instructions for any reason.
8. Dealer agrees to maintain records of all sales of Shares made through
Dealer and to furnish Distributor with copies of each record on request.
9. From time to time during the term of this Agreement Distributor may make
payments to Dealer pursuant to one or more of the distribution and/or
service plans adopted by certain of the Portfolios pursuant to Rule 12b-1
under the Investment Company Act of 1940 (the "Act") in consideration of
Dealer furnishing distribution and/or shareholder services hereunder with
respect to each such Portfolio. Distributor has no obligation to make any
such payments and Dealer hereby waives any such payments until Distributor
receives monies therefore from the Portfolio. Any such payments made
pursuant to this Section 9 shall be subject to the following terms and
conditions:
(a) Any such payments shall be in such amounts as Distributor may
from time to time advise Dealer in writing but in any event not in excess
of the amounts permitted by the plan in effect with respect to each
particular Portfolio and will be based on the dollar amount of Portfolio
Shares which are owned of record by Dealer as nominee for Dealer's
customers or which are owned by those customers of Dealer whose records,
as maintained by the Portfolios or their agents, designate Dealer as the
customer's dealer of record. Any such payments shall be in addition to the
selling concession, if any, allowed to Dealer pursuant to this Agreement.
No such fee will be paid to Dealer with respect to Shares purchased by
Dealer and redeemed by the Portfolios or by Distributor as agent within
seven business days after the dates of confirmation of such purchase.
(b) The provisions of this Section 9 relate to the plan adopted by a
particular Portfolio pursuant to Rule 12b-1. In accordance with Rule
12b-1, any person authorized to direct the disposition of monies paid or
payable by a Portfolio pursuant to this Section 9 shall provide the
Portfolio's Board, and the Board shall review, at least quarterly, a
written report of the amounts so expended and the purposes for which such
expenditures were made.
(c) The provisions of this Section 9 applicable to each Portfolio
shall remain in effect for not more than a year and thereafter for
successive annual periods only so long as such continuance is specifically
approved at least annually in conformity with Rule 12b-1 and the Act. The
provisions of this Section 9 shall automatically terminate with respect to
a particular plan, in the event such plan terminates or is not continued
or in the event this Agreement terminates or ceases to remain in effect.
Dealer may terminate this Agreement by notice in writing to Distributor,
which termination shall become effective thirty days after the date of
receipt by Distributor. Dealer agrees that Distributor has and
26
reserves the right, in Distributor's sole discretion, without notice, to
suspend sales of Shares of any of the Portfolios, or to withdraw entirely
the offering of Shares of any of the Portfolios, or, in Distributor's sole
discretion, to modify, amend or cancel this Agreement upon written notice
to Dealer of such modification, amendment or cancellation, which shall be
effective immediately on the date stated in such notice. Without limiting
the foregoing, Distributor may terminate this Agreement for cause upon
violation by Dealer of any of the provisions of this Agreement, said
termination to become effective on the date of the mailing of the notice
to Dealer of such termination. Without limiting the foregoing, any
provision hereof to the contrary notwithstanding, Dealer's expulsion from
the NASD will automatically terminate this Agreement without notice.
Dealer's suspension from the NASD, the appointment of a trustee for all or
substantially all of Dealer's business assets, or violation of applicable
State or Federal laws or rules or regulations of authorized regulatory
agencies will terminate this Agreement effective upon the date of
Distributor's mailing to Dealer of such termination. Distributor's failure
to terminate for any cause shall not constitute a waiver of Distributor's
right to terminate at a later date for any such cause. All notices
hereunder shall be to the respective parties at the addresses listed
herein, unless changed by written notice. Any dispute that may arise in
connection with this Agreement shall be submitted to arbitration by the
American Arbitration Association, with a panel of three persons (unless a
panel of fewer persons is agreed to by both parties) to be located in New
York, New York. The decision of the arbitrators shall be binding and
final, and judgment upon the award rendered may be entered in any court
having jurisdiction thereof.
10. This Agreement shall become effective upon Distributor's execution of this
Agreement, such date being the one appearing below. This Agreement and all
the rights and obligations of the parties hereunder shall be governed by
and construed under the laws of the State of New York without giving effect
to principles of conflicts of laws. In addition, New York shall serve as
the jurisdiction, venue or site for any action, dispute, resolution, or
proceeding. This Agreement is not assignable by Dealer without the written
permission of Distributor. The Trust may assign or transfer this Agreement
to any successor firm or corporation which becomes Distributor or
Sub-Distributor of the Trust.
"Accepted"
Orbitex Funds Distributor, Inc.
By:________________________________ By:_____________________________________
(Authorized Signature)
___________________________________ Print Name:_____________________________
(Please Print Name)
Date:______________________________ Date:___________________________________
27
EXHIBIT D
AUTHORIZED SARATOGA REPRESENTATIVES
The following individuals are authorized to request the issuance of sales
agreements to clients and/or potential clients of The Saratoga Advantage Trust:
Xxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxx
28
EXHIBIT E
Selling Agents That Have Entered Into Selling
Agreements With Orbitex Fund Services, Inc.
29
