EXHIBIT H-1
FORM OF
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT (this "AGREEMENT") is made as of the
___ day of _________, 2013 (the "EFFECTIVE DATE"), by and between The KP Funds,
a Massachusetts business trust (the "TRUST"), Xxxxxx Associates, Inc. (the
"INVESTMENT MANAGER") and SEI Investments Global Funds Services, a statutory
trust formed under the laws of the State of Delaware (the "ADMINISTRATOR").
WHEREAS, Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
ACT"), consisting of the series portfolios set forth in SCHEDULE I, attached
hereto, as the same may be amended from time to time ("PORTFOLIOS"), each of
which may consist of one or more classes of shares of beneficial interest
("SHARES"); and
WHEREAS, Trust desires the Administrator to provide, and the
Administrator is willing to provide, administrative and accounting services to
such Portfolios of Trust on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, Trust and the Administrator hereby agree as
follows:
SECTION 1
DEFINITIONS
1.01 "1940 ACT" shall have the meaning given to such term in the preamble
of this Agreement.
1.02 "ADMINISTRATOR" shall have the meaning given to such term in the
preamble of this Agreement.
1.03 "AGREEMENT" shall have the meaning given to such term in the preamble
of this Agreement.
1.04 "CONFIDENTIAL INFORMATION" shall have the meaning given to such term
in SECTION 11.01 of this Agreement.
1.05 "CONVERSION" means the processes and activities required to transfer
the books and records of Trust from the Trust or its prior
administrator, import the Trust's data and files into the
Administrator's system and such other processes and activities
identified as the responsibility of the Administrator in accordance
with the Conversion Plan.
1.06 "CONVERSION PLAN" shall have the meaning given to such term in
SECTION 2.05 of this Agreement.
1.07 "DISCLOSING PARTY" shall have the meaning given to such term in
SECTION 11.01 of this Agreement.
1.08 "GROSS NEGLIGENCE" means a conscious, voluntary act or omission in
reckless disregard of a legal duty and the rights of, or consequences
to, others.
1.09 "INITIAL TERM" shall have the meaning given to such term in SECTION
9.01 of this Agreement.
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1.10 "INTERESTED PARTY" or "INTERESTED PARTIES" means the Administrator,
its subsidiaries and its affiliates and each of their respective
officers, directors, employees, agents, delegates and associates.
1.11 "INTERESTS" means any partnership interest in, membership interest
in, shares of stock of or other equity interest in, as the case may
be, the Trust.
1.12 "INVESTMENTS" shall mean such cash, securities and all other assets
and property of whatsoever nature now owned or subsequently acquired
by or for the account of Trust.
1.13 "INVESTMENT MANAGER" shall refer to Xxxxxx Associates, Inc. or such
successor investment manager as may be appointed by the Trust from
time to time.
1.14 "LIQUIDATION" shall have the meaning given to such term in SECTION
9.02.02 of this Agreement.
1.15 "LIVE DATE" means the date on which Trust is converted onto the
Administrator's system and the Administrator begins calculating
Trust's official net asset values ("NAV").
1.16 "ORGANIZATIONAL DOCUMENTS" means, as applicable, the articles of
incorporation, declaration of trust, certificate of formation,
memorandum of association, partnership agreement, bylaws or other
similar documentation setting forth the respective rights and
obligations of directors, managers and Interest holders in the Trust.
1.17 "PERSON" shall mean any natural person, partnership, estate,
association, custodian, nominee, limited liability company,
corporation, trust or other legal entity.
1.18 "PRICING SOURCES" shall have the meaning given to such term in
SECTION 6 of this Agreement.
1.19 "PROPRIETARY INFORMATION" shall have the meaning given to such term
in SECTION 12.01 of this Agreement.
1.20 "PORTFOLIO" shall have the meaning given to such term in the preamble
of this Agreement.
1.21 "REASONABLE STEPS" shall have the meaning given to such term in
SECTION 11.01 of this Agreement.
1.22 "RECEIVING PARTY" shall have the meaning given to such term in
SECTION 11.01 of this Agreement.
1.23 "REGULATIONS" shall have the meaning given to such term in SECTION
12.12 of this Agreement.
1.24 "RENEWAL TERM" shall have the meaning given to such term in SECTION
9.01 of this Agreement.
1.25 "SHARES" shall have the meaning given to such term in the preamble of
this Agreement.
1.26 Unless the context otherwise requires and except as otherwise
specified in this Agreement, the term "TRUST" shall include, as
applicable, a trustee or trustees, or other Person having similar
status or performing similar functions, as the case may be, acting on
behalf of Trust.
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1.27 "TRUST DATA" shall have the meaning given to such term in SECTION
2.04 of this Agreement.
1.28 "TRUST MATERIALS" means any prospectus, registration statement,
statement of additional information, proxy solicitation and tender
offer materials, annual or other periodic report of Trust or any
advertising, marketing, shareholder communication, or promotional
material generated by Trust or its investment adviser from time to
time, as appropriate, including all amendments or supplements thereto.
1.29 "WEB ACCESS" shall have the meaning given to such term in SECTION
12.01 of this Agreement.
SECTION 2
APPOINTMENT AND CONTROL
2.01 SERVICES. Trust hereby appoints the Administrator to be, and the
Administrator agrees to act as, the administrative agent of Trust for
the term and subject to the provisions hereof. The Administrator shall
perform (and may delegate or sub-contract, as provided below) the
services set forth in this Agreement, including the services set forth
in SCHEDULE II, which may be amended from time to time in writing by
the parties ("SERVICES"). In performing its duties under this
Agreement, the Administrator will act in all material respects in
accordance with the Trust's governing documents and Prospectus as they
may be amended (provided copies are delivered to the Administrator).
2.02 AUTHORITY. Each of the activities engaged in under the provisions of
this Agreement by the Administrator on behalf of Trust shall be
subject to the overall direction and control of Trust or any Person
authorized to act on Trust's behalf (including, without limitation,
Trust's sponsor and the board of trustees of Trust); provided,
however, that the Administrator shall have the general authority to do
all acts deemed in the Administrator's good faith belief to be
necessary and proper to perform its obligations under this Agreement.
In performing its duties hereunder, the Administrator shall observe
and generally comply with the applicable prospectus, all applicable
resolutions and/or directives of Trust's board of trustees of which it
has notice, and applicable laws which may from time to time apply to
the Services rendered by the Administrator. In the event that a
Portfolio desires to amend its Organizational Documents in any manner
that can reasonably be expected to have a material impact on the
Administrator's performance of the Services hereunder, such Portfolio
shall notify the Administrator in advance of such amendment and the
parties will work together in good faith to minimize the impact of
such change on the Administrator's operations and compensate the
Administrator in connection therewith. The Administrator (i) shall not
have or be required to have any authority to supervise the investment
or reinvestment of the securities or other properties which comprise
the assets of Trust and (ii) shall not provide any investment advisory
services to Trust, and shall have no liability related to the
foregoing.
2.03 THIRD PARTIES; AFFILIATES. The Administrator may delegate to, or
sub-contract with, third parties or affiliates administrative or other
functions it deems necessary to perform its obligations under this
Agreement; provided, however, all fees and expenses incurred in any
delegation or sub-contract shall be paid by the Administrator and the
Administrator shall remain responsible to Trust for the acts and
omissions of such other entities as if such acts or omissions were the
acts or omissions of the Administrator. Trust acknowledges that during
the term of this Agreement, the services to be performed by the
Administrator may be completed by one or more of the Administrator's
affiliates or third parties located in or outside of the United States
of America.
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2.04 TRUST DATA. Trust shall be solely responsible for the accuracy,
completeness, and timeliness of all data and other information
provided to the Administrator by or on behalf of Trust pursuant to
this Agreement (including, without limitation, (i) prices, (ii)
sufficient transaction supporting documentation, (iii) detailed
accounting methodologies with respect to Trust's Investments as
approved by Trust's auditors, (iv) the terms of any agreement between
the Trust or its sponsor and an investor regarding any special fee or
specific fee arrangement or access to portfolio information that may
impact or affect the Services, and (v) trade and settlement
information from prime brokers and custodians) (collectively, "TRUST
DATA"). All Trust Data shall be provided to the Administrator on a
timely basis and in a format and medium reasonably requested by the
Administrator from time to time. Trust shall have an ongoing
obligation to promptly update all Trust Data so that such information
remains complete and accurate. All Trust Data shall be prepared and
maintained, by or on behalf of Trust, in accordance with applicable
law, the Trust Materials and generally acceptable accounting
principles. The Administrator shall be entitled to rely on all Trust
Data and shall have no liability for any loss, damage or expense
incurred by Trust or any other Person to the extent that such loss,
damage or expense arises out of or is related to Trust Data that is
not timely, current, complete and accurate.
2.05 CONVERSION PLAN. Promptly following the Effective Date, the
Administrator shall prepare a project plan ("CONVERSION PLAN") that
sets forth the respective roles and responsibilities of each of the
parties in connection with the Conversion or other implementation of
the Trust onto the Administrator's system.
SECTION 3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRUST
3.01 Trust represents and warrants that:
3.01.01. it has full power, right and authority to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby; the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly approved by all requisite actions on its part,
and no other proceedings on its part are necessary to approve
this Agreement or to consummate the transactions contemplated
hereby; this Agreement has been duly executed and delivered by
it; this Agreement constitutes a legal, valid and binding
obligation, enforceable against it in accordance with its terms;
3.01.02. it is not a party to any, and there are no, pending or
threatened legal, administrative, arbitral or other proceedings,
claims, actions or governmental or regulatory investigations or
inquiries (collectively, "ACTIONS") of any nature against it or
its properties or assets which could, individually or in the
aggregate, have a material effect upon its business or financial
condition. There is no injunction, order, judgment, decree, or
regulatory restriction imposed specifically upon it or any of its
properties or assets;
3.01.03. no existing Interest holder is a designated national and/or
blocked person as identified on the Office of Foreign Assets
Control's list maintained by the U.S. Department of Treasury
(found at xxxx://xxx.xxxxx.xxx.xxxx) or any other relevant
regulatory or law enforcement agencies, AS APPLICABLE TO THE
PORTFOLIO.
3.01.04. it is not in default under any contractual or statutory
obligations whatsoever (including the payment of any tax) which,
individually or in the aggregate, could
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materially and adversely affect, or is likely to materially and
adversely affect, its business or financial condition;
3.01.05. it has obtained all consents and given all notices (regulatory
or otherwise), made all required regulatory filings and is in
compliance with all applicable laws and regulations;
3.01.06. it has a valid engagement with an independent auditor, custodian
and broker and will provide additional information regarding such
service providers, including information regarding the terms of
its agreement with such service providers, upon request;
3.01.07. as of the close of business on the Effective Date, each
Portfolio that is in existence as of the Effective Date has
authorized the issuance of an indefinite number of shares and has
elected to register an indefinite number of shares in accordance
with Rule 24f-2 under the 1940 Act;
3.01.08. if necessary, any shareholder approval of this Agreement has
been obtained;
3.01.09. it has notified the Administrator of any and all separate
agreements between the Trust and any third party that could have
an impact on the Administrator performance of its obligations
pursuant to this Agreement; and
3.01.10. it has disclosed the terms of any agreement between the Trust or
its sponsor and an investor regarding any special fee or specific
fee arrangement or access to portfolio information that may
impact or affect the Services.
3.02 Trust covenants and agrees that:
3.02.01. it will furnish the Administrator from time to time with complete
copies, authenticated or certified, of each of the following:
(a) Copies of the following documents:
(1) Copies of Trust's current Declaration of Trust and of
any amendments thereto, certified by the proper
official of the state in which such document has been
filed.
(2) Trust's current bylaws and any amendments thereto; and
(3) Copies of resolutions of the trustees covering the
approval of this Agreement, authorization of a
specified officer of Trust to execute and deliver this
Agreement and authorization for specified officers of
Trust to instruct the Administrator.
(b) A list of all the officers of Trust, together with specimen
signatures of those officers who are authorized to instruct
the Administrator in all matters.
(c) Copies of all Trust Materials, including the current
prospectus and statement of additional information for each
Portfolio.
(d) A list of all issuers the Portfolio's are restricted from
purchasing.
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(e) A list of all affiliated persons (as such term is defined
in the 0000 Xxx) of Trust that are broker-dealers.
(f) The identity of Trust's auditors along with contact
information.
(g) The expense budget for each Portfolio for the current fiscal
year.
(h) A list of contact persons (primary, backup and secondary
backup) of Trust's investment adviser and, if applicable,
sub-adviser, who can be reached until 6:30 p.m. ET with
respect to valuation matters.
(i) Copies of all Trust Data reasonably requested by the
Administrator or necessary for the Administrator to perform
its obligations pursuant to this Agreement.
Trust shall promptly provide the Administrator with written
notice of any updates of or changes to any of the foregoing
documents or information, including an updated written copy
of such document or information. Until the Administrator
receives such updated information or document, the
Administrator shall have no obligation to implement or rely
upon such updated information or document.
3.02.02. it shall timely perform or oversee the performance of all
obligations identified in this Agreement as obligations of Trust,
including, without limitation, providing the Administrator with
all Trust Data and Organizational Documents reasonably requested
by the Administrator;
3.02.03. it will notify the Administrator as soon as reasonably practical
in advance of any matter which could materially affect the
Administrator's performance of its duties and obligations under
this Agreement, including any amendment to the documents
referenced in SECTION 3.02.01 above;
3.02.04. it will comply in all material respects with all applicable
requirements of the Securities Act of 1933, the Securities
Exchange Act of 1934, the 1940 Act, and any laws, rules and
regulations of governmental authorities having jurisdiction;
3.02.05. any reference to the Administrator or this Agreement in the
Trust Materials shall be limited solely to the description
provided by the Administrator in writing from time to time or
such other description as the parties shall mutually agree in
advance and in writing;
3.02.06. it shall be solely responsible for its compliance with
applicable investment policies, the Trust Materials, and any laws
and regulations governing the manner in which its assets may be
invested, and shall be solely responsible for any losses
attributable to non-compliance with the Trust Materials, and
applicable policies, laws and regulations governing such Trust,
its activities or the duties, actions or omissions of the
Investment Manager; and
3.02.07. it will promptly notify the Administrator of updates to its
representations and warranties hereunder.
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SECTION 4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ADMINISTRATOR
4.01 The Administrator represents and warrants that:
4.01.01. it has full power, right and authority to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby; the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly approved by all requisite action on its part,
and no other proceedings on its part are necessary to approve
this Agreement or to consummate the transactions contemplated
hereby; this Agreement has been duly executed and delivered by
it; this Agreement constitutes a legal, valid and binding
obligation, enforceable against it in accordance with its terms.
4.01.02. it is not a party to any, and there are no, pending or
threatened Actions of any nature against it or its properties or
assets which could, individually or in the aggregate, have a
material effect upon its business or financial condition. There
is no injunction, order, judgment, decree, or regulatory
restriction imposed specifically upon it or any of its properties
or assets.
4.01.03. it is not in default under any statutory obligations whatsoever
(including the payment of any tax) which materially and adversely
affects, or is likely to materially and adversely affect, its
business or financial condition.
SECTION 5 LIMITATION OF LIABILITY AND INDEMNIFICATION
5.01 THE DUTIES OF THE ADMINISTRATOR SHALL BE CONFINED TO THOSE
EXPRESSLY SET FORTH IN THIS AGREEMENT, AND NO IMPLIED DUTIES ARE
ASSUMED BY OR MAY BE ASSERTED AGAINST THE ADMINISTRATOR. EXCEPT
TO THE EXTENT ARISING OUT OF THE ADMINISTRATOR'S GROSS NEGLIGENCE
(AS DEFINED HEREIN), WILLFUL MISCONDUCT, BAD FAITH, FRAUD OR
CRIMINAL MISCONDUCT WHEN PROVIDING THE SERVICES, THE
ADMINISTRATOR'S AGGREGATE LIABILITY TO THE TRUST WILL BE LIMITED
TO MONETARY DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID
HEREUNDER DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT
GIVING RISE TO THE FIRST SUCH CLAIM TO OCCUR. For the avoidance
of doubt, the Administrator shall not be responsible for any
breach in the performance of its obligations under this Agreement
due to (i) the failure or delay of the Trust or either of its
respective agents to perform its obligations under this Agreement
or (ii) the Administrator's reliance on Trust Data. Each party
shall have the duty to mitigate its damages for which another
party may become responsible. As used in this SECTION 5, the term
"ADMINISTRATOR" shall include the officers, directors, employees,
affiliates and agents of the Administrator as well as that entity
itself. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO
THE CONTRARY, IN NO EVENT SHALL THE ADMINISTRATOR BE LIABLE FOR
ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR
OTHER NON- DIRECT DAMAGES OF ANY KIND WHETHER SUCH LIABILITY IS
PREDICATED ON CONTRACT, STRICT LIABILITY, OR ANY OTHER THEORY AND
REGARDLESS OF WHETHER THE TRUST IS ADVISED OF THE POSSIBILITY OF
ANY SUCH DAMAGES.
5.02 The Administrator may, from time to time, provide to the Trust
services and products ("SPECIAL THIRD PARTY SERVICES") from
external third party sources that are telecommunication carriers,
Pricing Sources, data feed providers or other similar service
providers ("SPECIAL THIRD PARTY VENDORS"). The Trust acknowledges
and agrees that the
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Special Third Party Services are confidential and proprietary
trade secrets of the Special Third Party Vendors. Accordingly,
the Trust shall honor requests by the Administrator and the
Special Third Party Vendors to protect their proprietary rights
in their data, information and property including requests that
the Trust place copyright notices or other proprietary legends on
printed matter, print outs, tapes, disks, film or any other
medium of dissemination. The Trust further acknowledges and
agrees that all Special Third Party Services are provided on an
"AS IS WITH ALL FAULTS" basis solely for such Trust's internal
use, and as an aid in connection with the receipt of the
Services. The Trust may use Special Third Party Services as
normally required on view-only screens and hard copy statements,
reports and other documents necessary to support such Trust's
investors, however the Trust shall not distribute any Special
Third Party Services to other third parties. THE SPECIAL THIRD
PARTY VENDORS AND THE ADMINISTRATOR MAKE NO WARRANTIES, EXPRESS
OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR USE,
OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE SPECIAL THIRD
PARTY SERVICES. NEITHER THE ADMINISTRATOR NOR THE SPECIAL THIRD
PARTY VENDORS SHALL BE LIABLE FOR ANY DAMAGES SUFFERED BY THE
TRUST IN THE USE OF ANY OF THE SPECIAL THIRD PARTY SERVICES,
INCLUDING, WITHOUT LIMITATION, LIABILITY FOR ANY INCIDENTAL,
CONSEQUENTIAL OR SIMILAR DAMAGES.
5.03 Trust shall indemnify, defend and hold harmless the
Administrator from and against and the Administrator shall have
no liability in connection with any and all actions, suits and
claims, whether groundless or otherwise, and from and against any
and all losses, damages, costs, charges, reasonable counsel fees
and disbursements, payments, expenses and liabilities (including
reasonable investigation expenses) arising directly or indirectly
out of: (i) any act or omission of the Administrator in carrying
out its duties hereunder or as a result of the Administrator's
reliance upon any instructions, notice or instrument that the
Administrator believes is genuine and signed or presented by an
authorized Person of Trust; provided that this indemnification
shall not apply if any such loss, damage or expense is caused by
or arises from the Administrator's, gross negligence, willful
misconduct, criminal misconduct, bad faith or fraud in the
performance of the Services; (ii) any violation by Trust or
Trust's sponsor of any applicable investment policy, law or
regulation, (iii) any misstatement or omission in the Trust
Materials or any Trust Data; (iv) any breach by Trust of any
representation, warranty or agreement contained in this
Agreement; (v) any act or omission of Trust, the Trust's former
administrator, a Special Third Party Vendor, the Trust's other
service providers (such as custodians, prime brokers, transfer
agents, investment advisors and sub-advisers); (vi) any pricing
error caused by the failure of the Trust's investment adviser or
sub-adviser to provide a trade ticket or for incorrect
information included in any trade ticket; or (vii) any act or
omission of the Administrator as a result of the Administrator's
compliance with the Regulations, including, but not limited to,
returning an investor's Investment or restricting the payment of
redemption proceeds.
5.04 To the extent that a Portfolio receives Special Third Party
Services from Interactive Data Corporation ("IDC"), such
Portfolio shall indemnify and hold harmless IDC and its suppliers
from any and all losses, damages, liability, costs, including
reasonable attorney's fees, resulting directly or indirectly from
any claim or demand against IDC by a third party arising out of,
derived from, or related to the accuracy or completeness of any
such Special Third Party Services received by a Portfolio. IDC
shall not be liable for any claim or demand against a Portfolio
by any third party.
5.05 The Administrator may apply to Trust, Trust's sponsor or any
Person acting on Trust's behalf at any time for instructions and
may consult counsel for Trust or Trust's sponsor or with
accountants, counsel and other experts with respect to any matter
arising in
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connection with the Administrator's duties hereunder, and the
Administrator shall not be liable or accountable for any action
taken or omitted by it in good faith in accordance with such
instruction or with the advice of counsel, accountants or other
experts. Also, the Administrator shall not be liable for actions
taken pursuant to any document which it reasonably believes to be
genuine and to have been signed by the proper Person or Persons.
The Administrator shall not be held to have notice of any change
of authority of any officer, employee or agent of Trust until
receipt of written notice thereof. To the extent that the
Administrator consults with Trust counsel pursuant to this
provision, any such expense shall be borne by Trust.
5.06 The Administrator shall have no liability for its reliance on
Trust Data or the performance or omissions of unaffiliated third
parties such as, by way of example and not limitation, transfer
agents, sub-transfer agents, custodians, prime brokers, placement
agents, third party marketers, asset data service providers,
investment advisers (including, without limitation, the Sponsor)
or sub-advisers, current or former third party service providers,
Pricing Sources, software providers, printers, postal or delivery
services, prior administrators, telecommunications providers and
processing and settlement services. The Administrator may rely on
and shall have no duty to investigate or confirm the accuracy or
adequacy of any information provided by any of the foregoing
third parties.
5.07 The Administrator shall have no obligations with respect to any
laws relating to the distribution, purchase or sale of Shares.
Further, Trust assumes full responsibility for the preparation,
contents and distribution of its Trust Materials and its
compliance with any applicable laws, rules, and regulations.
5.08 The indemnification rights afforded to Administrator hereunder
shall include the right to reasonable advances of defense
expenses on an as-incurred basis in the event of any pending or
threatened litigation or Action with respect to which
indemnification hereunder may ultimately be merited. If in any
case Trust is asked to indemnify or hold the Administrator
harmless, the Administrator shall promptly advise Trust of the
pertinent facts concerning the situation in question, and the
Administrator will use all reasonable care to identify and notify
Trust promptly concerning any situation which presents or appears
likely to present the probability of such a claim for
indemnification, but failure to do so shall not affect the rights
hereunder.
5.09 Trust shall be entitled to participate at its own expense or, if
it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If Trust
elects to assume the defense of any such claim, the defense shall
be conducted by counsel chosen by Trust and satisfactory to the
Administrator, whose approval shall not be unreasonably withheld.
In the event that Trust elects to assume the defense of any suit
and retain counsel, the Administrator shall bear the fees and
expenses of any additional counsel retained by it. If Trust does
not elect to assume the defense of a suit, it will advance to the
Administrator the fees and expenses of any counsel retained by
the Administrator. None of the parties hereto shall settle or
compromise any action, suit, proceeding or claim if such
settlement or compromise provides for an admission of liability
on the part of the indemnified party without such indemnified
party's written consent.
5.10 THE TRUST AND THE ADMINISTRATOR HAVE FREELY AND OPENLY
NEGOTIATED THIS AGREEMENT, INCLUDING THE PRICING, WITH THE
KNOWLEDGE THAT THE LIABILITY OF THE PARTIES IS TO BE LIMITED IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
5.11 The provisions of this SECTION 5 shall survive the termination
of this Agreement.
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SECTION 6
VALUATION
The Administrator is entitled to rely on the price and value
information (hereinafter "VALUATION INFORMATION") provided by
prior administrators, brokers and custodians, investment advisors
(including, without limitation, the Sponsor) an underlying fund
in which the Trust invests, if applicable, or any third-party
pricing services selected by the Administrator, the Trust's
investment advisor or the Trust (collectively hereinafter
referred to as the "PRICING SOURCES") as reasonably necessary in
the performance of the Services. The Administrator shall have no
obligation to obtain Valuation Information from any sources other
than the Pricing Sources and may rely on estimates provided by
the Trust's investment adviser or the applicable underlying fund.
In the event that the Trust's investment adviser does not provide
a timely value for an underlying fund, the Administrator shall
have the right to use the prior month's valuation in its
calculation of the current month's NAV, and the Administrator
shall have no liability and shall be indemnified by the
applicable Trust in connection with such action. The
Administrator shall have no liability or responsibility for the
accuracy of the Valuation Information provided by a Pricing
Source or the delegate of a Pricing Source and Trust shall
indemnify and defend the Administrator against any loss, damages,
costs, charges or reasonable counsel fees and expenses in
connection with any inaccuracy of such Valuation Information. The
Trust shall not use Valuation Information for any purpose other
than in connection with the Services and in accordance with the
provisions of this Agreement.
SECTION 7 ALLOCATION OF CHARGES AND EXPENSES
7.01 THE ADMINISTRATOR. The Administrator shall furnish at its own
expense the personnel necessary to perform its obligations under
this Agreement.
7.02 PORTFOLIO EXPENSES. Trust assumes and shall pay or cause to be
paid all expenses of Trust not otherwise allocated in this
Agreement, including, without limitation, organizational costs;
taxes; expenses for legal and auditing services; the expenses of
preparing (including typesetting), printing and mailing reports,
Trust Materials, proxy solicitation and tender offer materials
and notices to existing shareholders; all expenses incurred in
connection with issuing and redeeming Shares; the costs of
Pricing Sources; the costs of loan credit activity data; the
costs of escrow and custodial services; the cost of document
retention and archival services, the costs of responding to
document production requests; the cost of initial and ongoing
registration of the Shares under Federal and state securities
laws; costs associated with attempting to locate lost
shareholders; all expenses incurred in connection with any custom
programming or systems modifications required to provide any
reports or services requested by Trust; any expense, if
applicable, incurred to reprint Trust documents identifying the
Administrator (along with its address and telephone number) as
Trust's new administrator; costs associated with DST FanMail or
similar reporting service; bank service charges; NSCC trading
charges; fees and out-of-pocket expenses of trustees; the costs
of trustees' meetings; insurance; interest; brokerage costs;
litigation and other extraordinary or nonrecurring expenses; and
all fees and charges of service providers to Trust. Trust shall
reimburse the Administrator for its reasonable costs and
out-of-pocket expenses incurred in the performance of the
Services, including all reasonable charges for independent third
party audit charges, printing, copying, postage, telephone, and
fax charges incurred by the Administrator in the performance of
its duties.
SECTION 8
COMPENSATION
8.01 FEES. The Trust shall pay to the Administrator compensation for
the services performed and the facilities and personnel provided
by the Administrator pursuant to this
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Agreement, its pro-rata portion of the fees set forth in the
written fee schedule annexed hereto as SCHEDULE III and
incorporated herein. Trust shall have no right of set-off. The
fees set forth herein are determined based on the characteristics
of the each Portfolio as of the Effective Date. Any material
change to the characteristics to a Portfolio may give rise to an
adjustment to the fees set forth in this Agreement. In the event
of such a change, the parties shall negotiate any adjustment to
the fees payable hereunder in good faith; provided, however, that
if the parties cannot in good faith agree on such adjustment to
the fees within a reasonable period of time, the Administrator
may terminate this Agreement upon thirty days prior written
notice to the Trust. Trust shall pay the Administrator's fees
monthly in U.S. Dollars, unless otherwise agreed to by the
parties. The Administrator is hereby authorized to, and may, at
its option, automatically debit its fees due from the Trust's
portfolio account(s). Trust shall pay the foregoing fees despite
the existence of any dispute among the parties. If this Agreement
becomes effective subsequent to the first day of any calendar
month or terminates before the last day of any calendar month,
the Administrator's compensation for that part of the month in
which this Agreement is in effect shall be prorated in a manner
consistent with the calculation of the fees as set forth in
SCHEDULE III. Trust agrees to pay interest on all amounts past
due in an amount equal to the lesser of the maximum amount
permitted by applicable law or the month fee of one and one-half
percent (1 [] %) times the amount past due multiplied by the
number of whole or partial months from the date on which such
amount was first due up to and including the day on which payment
is received by the Administrator.
8.02 ADJUSTMENT OF FEES. Trust acknowledges that from time to time
after the first anniversary of the Effective Date, Administrator
may increase all non-asset based Fees upon thirty days written
notice to the Trust, in an amount equal to the greater of: (a)
five percent; or (b) the percentage increase in the CPI since the
Effective Date of the first such increase and since the date of
the immediately preceding increase with respect to all subsequent
increases; provided, however, that Administrator may not increase
the Fees more than one time during any twelve-month period.
Notwithstanding the above, in the event of an increase to
Administrator's costs for Special Third Party Services,
Administrator may at any time upon thirty days written notice
increase the Fees applicable to such Special Third Party
Services, provided, that such fee increase will not exceed the
applicable percentage increase in costs incurred by Administrator
with respect to such Special Third Party Services.
SECTION 9 DURATION AND TERMINATION
9.01 TERM AND RENEWAL. This Agreement shall become effective as of
the Effective Date and shall remain in effect for a period of
five years from and after the Live Date (the "INITIAL TERM"), and
thereafter shall automatically renew for successive three year
terms (each such period, a "RENEWAL TERM") unless terminated by
any party giving written notice of non-renewal at least one
hundred eighty days prior to the last day of the then current
term to each other party hereto.
9.02 TERMINATION FOR CAUSE.
9.02.01. This Agreement may be terminated by any party giving at least
ninety days prior notice in writing to the other parties if at
anytime the other party or parties have been first (i) notified
in writing that such party shall have materially failed to
perform its duties and obligations under this Agreement (such
notice shall be of the specific asserted material breach)
("BREACH NOTICE") and (ii) the party receiving the Breach Notice
shall not have remedied the noticed failure within ninety days
after receipt of the Breach Notice requiring it to be remedied.
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9.02.02. This Agreement may be terminated by any Portfolio, upon
forty-five days prior written notice to the Administrator,
effective (i) upon the reorganization or merger of a Portfolio
into another entity, provided that Administrator or one of its
affiliates enters into a written agreement to provide
administration services on behalf of such surviving entity, or
(ii) upon any "change of control" of the Investment Manager by
sale, merger, reorganization, acquisition or other disposition of
substantially all of the assets of the Investment Manager to a
third party, provided that Administator or one of its affiliates
enters into a written agreement to provide administration
services on behalf of the third party or surviving entity. For
purposes of this paragraph, the term "change of control" shall
mean any transaction that results in the transfer of right, title
and ownership of fifty-one percent or more of the equity
interests of the Investment Manager to a third party.
9.02.03. If the Administrator is unable to successfully convert Trust to
its operational environment within a reasonable period of time
following the Effective Date due to untimely, inaccurate or
incomplete Trust Data, the Administrator shall have the right to
terminate this Agreement, in its entirety or solely with respect
to such Portfolio, upon written notice and such termination shall
be effective upon the date set forth in such notice.
9.02.04. Subject to the terms and conditions set forth in this paragraph,
the parties may agree to terminate this Schedule on or before the
expiration of the then current term (hereinafter, an "EARLY
TERMINATION"). In the event the parties agree to an Early
Termination, the parties will agree upon the effective date of
such Early Termination and, on or before such effective date, the
Trust shall (i) not be in material breach of the Agreement
(including this Schedule) and (ii) pay the Buyout Amount to
Administrator in the manner set forth below. As used herein, the
term "BUYOUT AMOUNT" shall mean the amount that is equal to (1)
the average monthly fee payable by the Trust to Administrator
hereunder during the six month period (or such shorter period if
fewer than six months have elapsed since the effective date of
this Schedule) immediately preceding the mutual agreement called
for in this paragraph multiplied by (2) the number of months
remaining in the then current term (including any Renewal Term to
which the Trust is already committed). The Trust shall pay the
Buyout Amount to Administrator on or before the effective date of
the Early Termination by means of wire or other immediately
available funds.
9.03 EFFECT OF TERMINATION.
9.03.01. The termination of this Agreement shall be without prejudice to
any rights that may have accrued hereunder to any party hereto
prior to such termination.
9.03.02. After termination of this Agreement and upon payment of all
accrued fees, reimbursable expenses and other moneys owed to the
Administrator, the Administrator shall send to Trust, or as it
shall direct, all books of account, records, registers,
correspondence, documents and assets relating to the affairs of
or belonging to Trust in the possession of or under the control
of the Administrator or any of its agents or delegates.
9.03.03. In the event any and all accrued fees, reimbursable expenses and
other moneys owed to the Administrator hereunder remain unpaid in
whole or in
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part for more than thirty days past due, the Administrator,
without further notice, may take any and all actions it deems
necessary to collect such amounts due, and any and all of its
collection expenses, costs and fees shall be paid by Trust,
including, without limitation, administrative costs, attorneys
fees, court costs, collection agencies or agents and interest.
9.03.04. Notwithstanding the foregoing, in the event this Agreement is
terminated and for any reason the Administrator, with the written
consent of Trust, in fact continues to perform any one or more of
the services contemplated by this Agreement, the pertinent
provisions of this Agreement, including without limitation, the
provisions dealing with payment of fees and indemnification shall
continue in full force and effect. The Administrator shall be
entitled to collect from Trust, in addition to the compensation
described in SCHEDULE III, the amount of all of the
Administrator's expenses in connection with the Administrator's
activities following such termination, including without
limitation, the delivery to Trust and/or its designees of Trust's
property, records, instruments and documents.
SECTION 10
CONFLICTS OF INTEREST
10.01 NON-EXCLUSIVE. The services of the Administrator rendered to
Trust are not deemed to be exclusive. The Administrator is free
to render such services to others. The Administrator shall not be
deemed to be affected by notice of, or to be under any duty to
disclose to Trust or Person acting on Trust's behalf, information
which has come into its possession or the possession of an
Interested Party in the course of or in connection with providing
administrative or other services to any other person or in any
manner whatsoever other than in the course of carrying out its
duties pursuant to this Agreement.
10.02 RIGHTS OF INTERESTED PARTIES. Subject to applicable law, nothing
herein contained shall prevent:
10.02.01. an Interested Party from buying, holding, disposing of or
otherwise dealing in any Shares for its own account or the
account of any of its customers or from receiving remuneration in
connection therewith, with the same rights which it would have
had if the Administrator were not a party to this Agreement;
provided, however, that the prices quoted by the Administrator
are no more favorable to the Interested Party than to a similarly
situated investor in or redeeming holder of Shares;
10.02.02. an Interested Party from buying, holding, disposing of or
otherwise dealing in any securities or other investments for its
own account or for the account of any of its customers and
receiving remuneration in connection therewith, notwithstanding
that the same or similar securities or other investments may be
held by or for the account of Trust;
10.02.03. an Interested Party from receiving any commission or other
remuneration which it may negotiate in connection with any sale
or purchase of Shares or Investments effected by it for the
account of Trust; provided, however, that the amount of such
commission or other remuneration is negotiated at arm's length;
and
10.02.04. an Interested Party from contracting or entering into any
financial, banking or other transaction with Trust or from being
interested in any such contract or
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transaction; provided, however, that the terms of such transaction are
negotiated at arm's length.
SECTION 11
CONFIDENTIALITY
11.01 CONFIDENTIAL INFORMATION. The Administrator and Trust (in such
capacity, the "RECEIVING PARTY") acknowledge and agree to
maintain the confidentiality of Confidential Information (as
hereinafter defined) provided by the Administrator and Trust (in
such capacity, the "DISCLOSING PARTY") in connection with this
Agreement. The Receiving Party shall not disclose or disseminate
the Disclosing Party's Confidential Information to any Person
other than those employees, agents, contractors, subcontractors
and licensees of the Receiving Party, or with respect to the
Administrator as a Receiving Party, to those employees, agents,
technology service providers, contractors, subcontractors,
licensors and licensees of any agent or affiliate, who have a
need to know it in order to assist the Receiving Party in
performing its obligations, or to permit the Receiving Party to
exercise its rights under this Agreement. In addition, the
Receiving Party (a) shall take all Reasonable Steps to prevent
unauthorized access to the Disclosing Party's Confidential
Information, and (b) shall not use the Disclosing Party's
Confidential Information, or authorize other Persons to use the
Disclosing Party's Confidential Information, for any purposes
other than in connection with performing its obligations or
exercising its rights hereunder. As used herein, "Reasonable
Steps" means steps that a party takes to protect its own,
similarly confidential or proprietary information of a similar
nature, which steps shall in no event be less than a reasonable
standard of care.
The term "CONFIDENTIAL INFORMATION," as used herein, means any of
the Disclosing Party's proprietary or confidential information
including, without limitation, any non-public personal
information (as defined in Regulation S-P) of the Disclosing
Party, its affiliates, their respective clients or suppliers, or
other Persons with whom they do business, that may be obtained by
the Receiving Party from any source or that may be developed as a
result of this Agreement, the terms of (or any exercise of rights
granted by) this Agreement, technical data; trade secrets;
know-how; business processes; product plans; product designs;
service plans; services; customer lists and customers; markets;
software; developments; inventions; processes; formulas;
technology; designs; drawings; and marketing, distribution or
sales methods and systems; sales and profit figures or other
financial information that is disclosed, directly or indirectly,
to the Receiving Party by or on behalf of the Disclosing Party,
whether in writing, orally or by other means and whether or not
such information is marked as confidential.
11.02 EXCLUSIONS. The provisions of this SECTION 11 respecting
Confidential Information shall not apply to the extent, but only
to the extent, that such Confidential Information: (a) is already
known to the Receiving Party free of any restriction at the time
it is obtained from the Disclosing Party, (b) is subsequently
learned from an independent third party free of any restriction
and without breach of this Agreement; (c) is or becomes publicly
available through no wrongful act of the Receiving Party or any
third party; (d) is independently developed by or for the
Receiving Party without reference to or use of any Confidential
Information of the Disclosing Party; or (e) is required to be
disclosed pursuant to an applicable law, rule, regulation,
government requirement or court order, or the rules of any stock
exchange (provided, however, that the Receiving Party shall
advise the Disclosing Party of such required disclosure promptly
upon learning thereof in order to afford the Disclosing Party a
reasonable opportunity to contest, limit and/or assist the
Receiving Party in crafting such disclosure).
11.03 PERMITTED DISCLOSURE. The Receiving Party shall advise its
employees, agents, contractors, subcontractors and licensees, and
shall require its affiliates to advise their
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employees, agents, contractors, subcontractors and licensees, of
the Receiving Party's obligations of confidentiality and non-use
under this SECTION 11, and shall be responsible for ensuring
compliance by its and its affiliates' employees, agents,
contractors, subcontractors and licensees with such obligations.
In addition, the Receiving Party shall require all Persons that
are provided access to the Disclosing Party's Confidential
Information, other than the Receiving Party's accountants and
legal counsel, to execute confidentiality or non-disclosure
agreements containing provisions substantially similar to those
set forth in this SECTION 11. The Receiving Party shall promptly
notify the Disclosing Party in writing upon learning of any
unauthorized disclosure or use of the Disclosing Party's
Confidential Information by such Persons.
11.04 EFFECT OF TERMINATION. Upon the Disclosing Party's written
request following the termination of this Agreement, the
Receiving Party promptly shall return to the Disclosing Party, or
destroy, all Confidential Information of the Disclosing Party
provided under or in connection with this Agreement, including
all copies, portions and summaries thereof. Notwithstanding the
foregoing sentence, (a) the Receiving Party may retain one copy
of each item of the Disclosing Party's Confidential Information
for purposes of identifying and establishing its rights and
obligations under this Agreement, for archival or audit purposes
and/or to the extent required by applicable law, and (b) the
Administrator shall have no obligation to return or destroy
Confidential Information of Trust that resides in save tapes of
Administrator; provided, however, that in either case all such
Confidential Information retained by the Receiving Party shall
remain subject to the provisions of SECTION 11 for so long as it
is so retained. If requested by the Disclosing Party, the
Receiving Party shall certify in writing its compliance with the
provisions of this SECTION 11.
SECTION 12 MISCELLANEOUS PROVISIONS
12.01 INTERNET ACCESS. Data and information may be made electronically
accessible to Trust, its adviser and/or sub-adviser(s) and its
investors through Internet access to one or more web sites
provided by the Administrator ("WEB ACCESS"). As between the
Trust and Administrator, the Administrator shall own all right,
title and interest to such Web Access, including, without
limitation, all content, software, interfaces, documentation,
data, trade secrets, design concepts, "look and feel" attributes,
enhancements, improvements, ideas and inventions and all
intellectual property rights inherent in any of the foregoing or
appurtenant thereto including all patent rights, copyrights,
trademarks, know-how and trade secrets (collectively, the
"Proprietary Information"). Trust recognizes that the Proprietary
Information is of substantial value to the Administrator and
shall not use or disclose the Proprietary Information except as
specifically authorized in writing by the Administrator. Use of
the Web Access by Trust or its agents or investors will be
subject to any additional terms of use set forth on the web site.
All Web Access and the information (including text, graphics and
functionality) on the web sites related to such Web Access is
presented "As Is" and "As Available" without express or implied
warranties including, but not limited to, implied warranties of
non-infringement, merchantability and fitness for a particular
purpose. The Administrator neither warrants that the Web Access
will be uninterrupted or error free, nor guarantees the
accessibility, reliability, performance, timeliness, sequence, or
completeness of information provided on the Web Access.
12.02 INDEPENDENT CONTRACTOR. In making, and performing under, this
Agreement, the Administrator shall be deemed to be acting as an
independent contractor of Trust and neither the Administrator nor
its employees shall be deemed an agent, affiliate, legal
representative, joint venturer or partner of Trust. No party is
authorized to bind any other party to any obligation, affirmation
or commitment with respect to any other Person.
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12.03 ASSIGNMENT; BINDING EFFECT. Trust may not assign, delegate or
transfer, by operation of law or otherwise, this Agreement (in
whole or in part), or any of Trust's obligations hereunder,
without the prior written consent of the Administrator, which
consent shall not be unreasonably withheld or delayed. The
Administrator may assign or transfer, by operation of law or
otherwise, all or any portion of its rights under this Agreement
to an affiliate of the Administrator or to any person or entity
who purchases all or substantially all of the business or assets
of the Administrator to which this Agreement relates, provided
that such affiliate, person or entity agrees in advance and in
writing to be bound by the terms, conditions and provisions of
this Agreement. Subject to the foregoing, all of the terms,
conditions and provisions of this Agreement shall be binding upon
and shall inure to the benefit of each party's successors and
permitted assigns. Any assignment, delegation, or transfer in
violation of this provision shall be void and without legal
effect.
12.04 AGREEMENT FOR SOLE BENEFIT OF THE ADMINISTRATOR AND TRUSTS. This
Agreement is for the sole and exclusive benefit of the
Administrator and Trusts and will not be deemed to be for the
direct or indirect benefit of either (i) the clients or customers
of the Administrator or Trust or (ii) the Sponsor. The clients or
customers of the Administrator or Trust will not be deemed to be
third party beneficiaries of this Agreement nor to have any other
contractual relationship with the Administrator by reason of this
Agreement and each party hereto agrees to indemnify and hold
harmless the other party from any claims of its clients or
customers against the other party including any attendant
expenses and attorneys' fees, based on this Agreement or the
services provided hereunder.
12.05 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of
Pennsylvania without giving effect to any choice or conflict of
law provision or rule that would cause the application of the
laws of any other jurisdiction. To the extent that the applicable
laws of the Commonwealth of Pennsylvania, or any of the
provisions of this Agreement, conflict with the applicable
provisions of the 1940 Act, the Securities Act of 1933 or the
Securities Exchange Act of 1934, the latter shall control. Each
party to this Agreement, by its execution hereof, (i) hereby
irrevocably submits to the nonexclusive jurisdiction of the state
courts of the Commonwealth of Pennsylvania or the United States
District Courts for the Eastern District of Pennsylvania for the
purpose of any action between the parties arising in whole or in
part under or in connection with this Agreement, and (ii) hereby
waives to the extent not prohibited by applicable law, and agrees
not to assert, by way of motion, as a defense or otherwise, in
any such action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that any such
action brought in one of the above-named courts should be
dismissed on grounds of forum non conveniens, should be
transferred or removed to any court other than one of the
above-named courts, or should be stayed by reason of the pendency
of some other proceeding in any other court other than one of the
above-named courts, or that this Agreement or the subject matter
hereof may not be enforced in or by such court.
12.06 EQUITABLE RELIEF. Each party agrees that any other party's
violation of the provisions of SECTION 11 (CONFIDENTIALITY) may
cause immediate and irreparable harm to the other party for which
money damages may not constitute an adequate remedy at law.
Therefore, the parties agree that, in the event either party
breaches or threatens to breach said provision or covenant, the
other party shall have the right to seek, in any court of
competent jurisdiction, an injunction to restrain said breach or
threatened breach, without posting any bond or other security.
12.07 DISPUTE RESOLUTION. Whenever either party desires to institute
legal proceedings against the other concerning this Agreement, it
shall provide written notice to that effect to such
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other party. The party providing such notice shall refrain from
instituting said legal proceedings for a period of thirty days
following the date of provision of such notice. During such
period, the parties shall attempt in good faith to amicably
resolve their dispute by negotiation among their executive
officers. This SECTION 12.07 shall not prohibit either party from
seeking, at any time, equitable relief as permitted under SECTION
12.06.
12.08 NOTICE. All notices provided for or permitted under this
Agreement (except for correspondence between the parties related
to operations in the ordinary course) shall be deemed effective
upon receipt, and shall be in writing and (a) delivered
personally, (b) sent by commercial overnight courier with written
verification of receipt, or (c) sent by certified or registered
U.S. mail, postage prepaid and return receipt requested, to the
party to be notified, at the address for such party set forth
below, or at such other address of such party specified in the
opening paragraph of this Agreement. Notices to the Administrator
shall be sent to the attention of: General Counsel, SEI
Investments Global Funds Services, Xxx Xxxxxxx Xxxxxx Xxxxx,
Xxxx, Xxxxxxxxxxxx 00000, with a copy, given in the manner
prescribed above, to your current relationship manager. Notices
to Trust shall be sent to the persons specified in SCHEDULE IV.
12.09 ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth the
entire understanding of the parties with respect to the subject
matter hereof. This Agreement supersedes all prior or
contemporaneous representations, discussions, negotiations,
letters, proposals, agreements and understandings between the
parties hereto with respect to the subject matter hereof, whether
written or oral. This Agreement may be amended, modified or
supplemented only by a written instrument duly executed by an
authorized representative of each of the parties.
12.10 SEVERABILITY. Any provision of this Agreement that is determined
to be invalid or unenforceable in any jurisdiction shall be
ineffective to the extent of such invalidity or unenforceability
in such jurisdiction, without rendering invalid or unenforceable
the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other
jurisdiction. If a court of competent jurisdiction declares any
provision of this Agreement to be invalid or unenforceable, the
parties agree that the court making such determination shall have
the power to reduce the scope, duration, or area of the
provision, to delete specific words or phrases, or to replace the
provision with a provision that is valid and enforceable and that
comes closest to expressing the original intention of the
parties, and this Agreement shall be enforceable as so modified.
12.11 WAIVER. Any term or provision of this Agreement may be waived at
any time by the party entitled to the benefit thereof by written
instrument executed by such party. No failure of either party
hereto to exercise any power or right granted hereunder, or to
insist upon strict compliance with any obligation hereunder, and
no custom or practice of the parties with regard to the terms of
performance hereof, will constitute a waiver of the rights of
such party to demand full and exact compliance with the terms of
this Agreement.
12.12 ANTI-MONEY LAUNDERING LAWS. In connection with performing the
Services set forth herein, the Administrator may provide
information that Trust may rely upon in connection with Trust's
compliance with applicable laws, policies and Regulations aimed
at the prevention and detection of money laundering and/or
terrorism activities (hereinafter, the "REGULATIONS"). Trust and
the Administrator agree that Trust shall be responsible for its
compliance with all such Regulations. It shall be a condition
precedent to providing Services to Trust under this Agreement and
the Administrator shall have no liability for non-performance of
its obligations under this Agreement unless it is satisfied, in
its absolute discretion, that it has sufficient and appropriate
information and material to
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discharge its obligations under the Regulations, and that the
performance of such obligations will not violate any Regulations
applicable to it. Without in any way limiting the foregoing,
Trust acknowledges that the Administrator is authorized to return
an investor's Investment in any Portfolio and take any action
necessary to restrict repayment of redemption proceeds to the
extent necessary to comply with its obligations pursuant to the
Regulations.
12.13 FORCE MAJEURE. No breach of any obligation of a party to this
Agreement (other than obligations to pay amounts owed) will
constitute an event of default or breach to the extent it arises
out of a cause, existing or future, that is beyond the control
and without negligence of the party otherwise chargeable with
breach or default, including without limitation: work action or
strike; lockout or other labor dispute; flood; war; riot; theft;
act of terrorism, earthquake or natural disaster. Either party
desiring to rely upon any of the foregoing as an excuse for
default or breach will, when the cause arises, give to the other
party prompt notice of the facts which constitute such cause;
and, when the cause ceases to exist, give prompt notice thereof
to the other party.
12.14 EQUIPMENT FAILURES. In the event of equipment failures beyond
the Administrator's control, the Administrator shall take
reasonable and prompt steps to minimize service interruptions but
shall have no liability with respect thereto. The Administrator
shall develop and maintain a plan for recovery from equipment
failures which may include contractual arrangements with
appropriate parties making reasonable provision for emergency use
of electronic data processing equipment to the extent appropriate
equipment is available.
12.15 NON-SOLICITATION. During the term of this Agreement and for a
period of one year thereafter, the Trust shall not solicit, make
an offer of employment to, or enter into a consulting
relationship with, any person who was an employee of the
Administrator during the term of this Agreement. If Trust
breaches this provision, Trust shall pay to the Administrator
liquidated damages equal to 100% of the most recent twelve month
salary of the Administrator's former employee together with all
legal fees reasonably incurred by the Administrator in enforcing
this provision. The foregoing restriction on solicitation does
not apply to unsolicited applications for jobs, responses to
public advertisements or candidates submitted by recruiting
firms, provided that such firms have not been contacted to
circumvent the spirit and intention of this SECTION 12.15.
12.16 HEADINGS. All SECTION headings contained in this Agreement are
for convenience of reference only, do not form a part of this
Agreement and will not affect in any way the meaning or
interpretation of this Agreement.
12.17 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall constitute one and the same
instrument. Each such counterpart shall be deemed an original,
and it shall not be necessary in making proof of this Agreement
to produce or account for more than one such counterpart. This
Agreement shall be deemed executed by both parties when any one
or more counterparts hereof or thereof, individually or taken
together, bears the original facsimile or scanned signatures of
each of the parties.
12.18 PUBLICITY. Except to the extent required by applicable Law,
neither the Administrator nor Trust shall issue or initiate any
press release arising out of or in connection with this Agreement
or the Services rendered hereunder; PROVIDED, HOWEVER, that if no
special prominence is given or particular reference made to Trust
over other clients, nothing herein shall prevent the
Administrator from (i) placing Trust's or the Investment
Manager's name and/or company logo(s) (including any registered
trademark or service xxxx) on the Administrator's client list(s)
(and sharing such list(s) with current or potential
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clients of the Administrator) and/or marketing material which
will include such entities' name, logo and those services
provided to the Trust by the Administrator; (ii) using Trust as
reference; or (iii) otherwise orally disclosing that Trust is a
client of the Administrator at presentations, conferences or
other similar meetings. If the Administrator desires to engage in
any type of publicity other than as set forth in subsections (i)
through (iii) above or if Trust desires to engage in any type of
publicity, the party desiring to engage in such publicity shall
obtain the prior written consent of the other party hereto, such
consent not to be unreasonably withheld, delayed or conditioned.
12.19 INSURANCE. Each party hereto shall maintain appropriate
insurance coverage with respect to such party's responsibilities
hereunder; provided, however, that the amount of insurance
coverage shall in no way affect a party's obligations or
liability as otherwise set forth in this Agreement. Without
limiting the foregoing, in the event that the Administrator makes
an employee of the Administrator available to the Trust to serve
as an officer of the Trust, the Trust shall maintain professional
liability (directors' & officers' and errors and omissions)
insurance with limits of not less than $5 Million per occurrence
("OFFICER INSURANCE MINIMUM"). The Trust shall provide a
certificate of insurance to the Administrator prior to
Administrator providing Services to the Trust and annually
thereafter upon Administrator's request. Such certificate of
insurance shall contain an agreement by the issuing insurance
company that such insurance shall not be materially changed,
cancelled or terminated upon less than thirty days prior written
notice to Administrator. Directors' & officers' insurance shall
be acquired only through insurance companies having an A.M. Best
rating of A- VIII or better. The trust further releases, assigns
and waives any and all rights of recovery against the
Administrator and its employees, successors and permitted assigns
that the Trust may otherwise have or acquire in or from, or are
in any way connected with any loss covered by the Trust's D&O
Liability Insurance or because of deductible clauses in or
inadequacy of limits of such policy of insurance. The Trust shall
promptly notify the Administrator should its insurance coverage
with respect to professional liability be cancelled or fall below
the Officer Insurance Minimum, such notification to include the
date of cancellation, if applicable.
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF
SEI INVESTMENTS GLOBAL FUNDS SERVICES
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the Effective Date.
ADMINISTRATOR: TRUST:
SEI INVESTMENTS GLOBAL FUNDS SERVICES THE KP FUNDS
By: ___________________ By: _______________________
Name: Name:
Title: Title:
INVESTMENT MANAGER:
XXXXXX ASSOCIATES, INC.
By: _______________________
Name:
Title:
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF
SEI INVESTMENTS GLOBAL FUNDS SERVICES
SCHEDULE I
PORTFOLIOS
CORE FUNDS
KP Large Cap Equity Fund
KP Small Cap Equity Fund
KP International Equity Fund
KP Fixed Income Fund
TARGET DATE FUNDS
KP Retirement Path 2015 Fund
KP Retirement Path 2020 Fund
KP Retirement Path 2025 Fund
KP Retirement Path 2030 Fund
KP Retirement Path 2035 Fund
KP Retirement Path 2040 Fund
KP Retirement Path 2045 Fund
KP Retirement Path 2050 Fund
KP Retirement Path 2055 Fund
KP Retirement Path 2060 Fund
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF
SEI INVESTMENTS GLOBAL FUNDS SERVICES
THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI GLOBAL SERVICES, INC.
SCHEDULE II
LIST OF SERVICES
1) MAINTAIN TRUST'S ACCOUNTING BOOKS AND RECORDS;
2) OBTAIN PORTFOLIO SECURITY VALUATIONS FROM APPROPRIATE SOURCES CONSISTENT
WITH TRUST'S PRICING AND VALUATION POLICIES, AND CALCULATE NET ASSET VALUE
OF EACH PORTFOLIO AND CLASS;
3) COMPUTE YIELDS, TOTAL RETURN, EXPENSE RATIOS, PORTFOLIO TURNOVER RATE AND
AVERAGE DOLLAR-WEIGHTED PORTFOLIO MATURITY, AS APPROPRIATE;
4) TRACK AND VALIDATE INCOME AND EXPENSE ACCRUALS, ANALYZE AND MODIFY EXPENSE
ACCRUAL CHANGES PERIODICALLY, AND PROCESS EXPENSE DISBURSEMENTS TO VENDORS
AND SERVICE PROVIDERS;
5) PERFORM CASH PROCESSING SUCH AS RECORDING PAID-IN CAPITAL ACTIVITY,
PERFORM NECESSARY RECONCILIATIONS WITH THE TRANSFER AGENT AND THE
CUSTODIAN, AND PROVIDE CASH AVAILABILITY DATA TO THE ADVISER, IF REQUESTED;
6) CALCULATE REQUIRED ORDINARY INCOME AND CAPITAL GAINS DISTRIBUTIONS,
COORDINATE ESTIMATED CASH PAYMENTS, AND PERFORM NECESSARY RECONCILIATIONS
WITH THE TRANSFER AGENT;
7) PROVIDE STANDARDIZED PERFORMANCE REPORTING DATA TO TRUST AND ITS ADVISER;
8) PROVIDE PERFORMANCE, FINANCIAL AND EXPENSE INFORMATION FOR REGISTRATION
STATEMENTS AND PROXIES;
9) COMMUNICATE NET ASSET VALUE, YIELD, TOTAL RETURN OR OTHER FINANCIAL DATA
TO APPROPRIATE THIRD PARTY REPORTING AGENCIES, AND ASSIST IN RESOLUTION OF
ERRORS REPORTED BY SUCH THIRD PARTY AGENCIES;
10) UPDATE ACCOUNTING SYSTEM TO REFLECT RATE CHANGES, AS RECEIVED FROM A
PORTFOLIO'S INVESTMENT ADVISER, SUBADVISOR OR RESPECTIVE DESIGNEE, ON
VARIABLE INTEREST RATE INSTRUMENTS;
11) ACCRUE EXPENSES OF EACH PORTFOLIO ACCORDING TO INSTRUCTIONS RECEIVED FROM
TRUST'S TREASURER OR OTHER AUTHORIZED REPRESENTATIVE (INCLUDING OFFICERS OF
TRUST'S INVESTMENT ADVISER);
12) DETERMINE THE OUTSTANDING RECEIVABLES AND PAYABLES FOR ALL (1) SECURITY
TRADES, (2) PORTFOLIO SHARE TRANSACTIONS AND (3) INCOME AND EXPENSE
ACCOUNTS IN ACCORDANCE WITH THE BUDGETS PROVIDED BY TRUST OR ITS INVESTMENT
ADVISER;
13) PREPARE TRUST'S FINANCIAL STATEMENTS FOR REVIEW BY FUND MANAGEMENT AND
INDEPENDENT AUDITORS, MANAGE ANNUAL AND SEMI-ANNUAL REPORT PREPARATION
PROCESS, PREPARE FORMS N-SAR, N-Q, N-CSR AND 24F-2, PROVIDE PORTFOLIO
PERFORMANCE DATA FOR ANNUAL REPORT, COORDINATE PRINTING AND DELIVERY OF
ANNUAL AND SEMI-ANNUAL REPORTS TO SHAREHOLDERS, AND FILE FORMS N-SAR, N-Q,
N-CSR AND 24F- 2 AND ANNUAL/SEMI-ANNUAL REPORTS VIA XXXXX;
14) MONITOR EACH PORTFOLIO'S COMPLIANCE WITH THE REQUIREMENTS OF SUBCHAPTER M
OF THE INTERNAL REVENUE CODE WITH RESPECT TO STATUS AS A REGULATED
INVESTMENT COMPANY;
15) PREPARE AND FILE FEDERAL AND STATE TAX RETURNS FOR TRUST OTHER THAN THOSE
REQUIRED TO BE PREPARED AND FILED BY TRUST'S TRANSFER AGENT OR CUSTODIAN.
16) PROVIDE DATA FOR YEAR-END 1099'S AND SUPPLEMENTAL TAX LETTERS;
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI GLOBAL SERVICES, INC.
17) PROVIDE SUCH FUND ACCOUNTING AND FINANCIAL REPORTS IN CONNECTION WITH
QUARTERLY MEETINGS OF THE BOARD OF TRUSTEES AS THE BOARD OF TRUSTEES MAY
REASONABLY REQUEST;
18) MANAGE TRUST'S PROXY SOLICITATION PROCESS, INCLUDING EVALUATING PROXY
DISTRIBUTION CHANNELS, COORDINATING WITH OUTSIDE SERVICE PROVIDER TO
DISTRIBUTE PROXIES, TRACK SHAREHOLDER RESPONSES AND TABULATE VOTING
RESULTS, AND MANAGING THE PROXY SOLICITATION VENDOR IF NECESSARY;
19) PROVIDE INDIVIDUALS TO SERVE AS MINISTERIAL OFFICERS OF TRUST, AS
REQUESTED; 20) PROVIDE PRINCIPAL ACCOUNTING OFFICER FOR PURPOSES OF
XXXXXXXX-XXXXX;
21) COORDINATE WITH TRUST'S COUNSEL ON FILING OF TRUST'S REGISTRATION
STATEMENTS AND PROXY STATEMENTS, AND COORDINATE PRINTING AND DELIVERY OF
TRUST'S PROSPECTUSES AND PROXY STATEMENTS;
22) COORDINATE TRUST'S BOARD OF TRUSTEES' SCHEDULE, AGENDA AND PRODUCTION OF
BOARD OF TRUSTEES MEETING MATERIALS, AND ATTEND BOARD OF TRUSTEES MEETINGS
(IF REQUESTED);
23) PROVIDE CONSULTATION TO TRUST ON REGULATORY MATTERS RELATING TO THE
OPERATION OF TRUST AS REQUESTED AND COORDINATE WITH TRUST'S LEGAL COUNSEL
REGARDING SUCH MATTERS;
24) ASSIST LEGAL COUNSEL TO TRUST IN THE DEVELOPMENT OF POLICIES AND
PROCEDURES RELATING TO THE OPERATION OF TRUST;
25) ACT AS LIAISON TO LEGAL COUNSEL TO TRUST AND, WHERE APPLICABLE, TO LEGAL
COUNSEL TO TRUST'S INDEPENDENT TRUSTEES;
26) COORDINATE WITH TRUST COUNSEL IN THE PREPARATION, REVIEW AND EXECUTION OF
CONTRACTS BETWEEN TRUST AND THIRD PARTIES, SUCH AS TRUST'S INVESTMENT
ADVISER, TRANSFER AGENT, AND CUSTODIAN, AND RECORD-KEEPERS OR SHAREHOLDER
SERVICE PROVIDERS;
27) ASSIST TRUST IN HANDLING AND RESPONDING TO ROUTINE REGULATORY EXAMINATIONS
WITH RESPECT TO RECORDS RETAINED OR SERVICES PROVIDED BY THE ADMINISTRATOR,
AND COORDINATE WITH TRUST'S LEGAL COUNSEL IN RESPONDING TO ANY NON-ROUTINE
REGULATORY MATTERS WITH RESPECT TO SUCH MATTERS;
28) PROVIDE CONSULTING WITH RESPECT TO THE ONGOING DESIGN, DEVELOPMENT AND
OPERATION OF TRUST, INCLUDING NEW PORTFOLIOS OR SHARE CLASSES AND/OR LOAD
STRUCTURES AND FINANCING, AS WELL AS CHANGES TO INVESTMENT OBJECTIVES AND
POLICES FOR EXISTING PORTFOLIOS;
29) COORDINATE AS NECESSARY THE REGISTRATION OR QUALIFICATION OF SHARES WITH
APPROPRIATE STATE SECURITIES AUTHORITIES;
30) MANAGE THE PREPARATION FOR AND CONDUCTING OF BOARD OF TRUSTEES MEETINGS BY
(I) COORDINATING BOARD OF TRUSTEES BOOK PRODUCTION AND DISTRIBUTION
PROCESS, (II) SUBJECT TO REVIEW AND APPROVAL BY TRUST AND ITS COUNSEL,
PREPARING MEETING AGENDAS, (III) PREPARING THE RELEVANT SECTIONS OF THE
BOARD OF TRUSTEES MATERIALS REQUIRED TO BE PREPARED BY THE ADMINISTRATOR,
(IV) ASSISTING TO GATHER AND COORDINATE SPECIAL MATERIALS RELATED TO ANNUAL
CONTRACT RENEWALS AND APPROVAL OF RULE 12B-1 FOR AND AS DIRECTED BY THE
TRUSTEES OR TRUST COUNSEL, (V) ATTENDING BOARD OF TRUSTEES MEETINGS, AND
(VI) PERFORMING SUCH OTHER BOARD OF TRUSTEES MEETING FUNCTIONS AS SHALL BE
AGREED BY THE PARTIES IN WRITING (IN THIS REGARD, TRUST SHALL PROVIDE THE
ADMINISTRATOR WITH NOTICE OF REGULAR MEETINGS AT LEAST SIX (6) WEEKS BEFORE
SUCH MEETING AND AS SOON AS PRACTICABLE BEFORE ANY SPECIAL MEETING OF THE
BOARD OF TRUSTEES);
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI GLOBAL SERVICES, INC.
31) COOPERATE WITH, AND TAKE ALL REASONABLE ACTIONS IN THE PERFORMANCE OF ITS
DUTIES UNDER THIS AGREEMENT TO ENSURE THAT ALL NECESSARY INFORMATION IS
MADE AVAILABLE TO TRUST'S INDEPENDENT PUBLIC ACCOUNTANTS IN CONNECTION WITH
THE PREPARATION OF ANY AUDIT OR REPORT REQUESTED BY TRUST, INCLUDING THE
PROVISION OF A CONFERENCE ROOM AT THE ADMINISTRATOR'S LOCATION IF NECESSARY
(IN THIS REGARD, TRUST'S INDEPENDENT AUDITORS SHALL PROVIDE THE
ADMINISTRATOR WITH REASONABLE NOTICE OF ANY SUCH AUDIT SO THAT (I) THE
AUDIT WILL BE COMPLETED IN A TIMELY FASHION AND (II) THE ADMINISTRATOR WILL
BE ABLE TO PROMPTLY RESPOND TO SUCH INFORMATION REQUESTS WITHOUT UNDUE
DISRUPTION OF ITS BUSINESS); AND
32) ON A T+2 POST-TRADE BASIS AND BASED ON THE INFORMATION AVAILABLE TO THE
ADMINISTRATOR, PERIODICALLY MONITOR THE PORTFOLIOS FOR COMPLIANCE WITH
APPLICABLE LIMITATIONS AS SET FORTH IN TRUST'S OR ANY PORTFOLIO'S THEN
CURRENT PROSPECTUS OR STATEMENT OF ADDITIONAL INFORMATION (THIS PROVISION
SHALL NOT RELIEVE TRUST'S INVESTMENT ADVISER AND SUB-ADVISERS, IF ANY, OF
THEIR PRIMARY DAY-TO-DAY RESPONSIBILITY FOR ASSURING SUCH COMPLIANCE,
INCLUDING ON A PRE-TRADE BASIS).
33) ADDITIONAL REPORTS AND SERVICES.
o UPON REASONABLE NOTICE AND AS MUTUALLY AGREED UPON, THE ADMINISTRATOR
MAY PROVIDE ADDITIONAL REPORTS UPON THE REQUEST OF TRUST OR ITS
INVESTMENT ADVISER, WHICH MAY RESULT IN ADDITIONAL CHARGES, THE AMOUNT
OF WHICH SHALL BE AGREED UPON BETWEEN THE PARTIES PRIOR TO THE
PROVISION OF SUCH REPORT.
o UPON REASONABLE NOTICE AND AS MUTUALLY AGREED UPON, THE ADMINISTRATOR
MAY PROVIDE SUCH ADDITIONAL SERVICES WITH RESPECT TO A PORTFOLIO,
WHICH MAY RESULT IN AN ADDITIONAL CHARGE, THE AMOUNT OF WHICH SHALL BE
AGREED UPON BETWEEN THE PARTIES PRIOR TO THE PROVISION OF SUCH
SERVICE.
***
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI GLOBAL SERVICES, INC.
SCHEDULE III
SCHEDULE OF FEES
[____]
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI GLOBAL SERVICES, INC.
SCHEDULE IV
NOTICE INSTRUCTION FORM
TO WHOM NOTICES SHOULD BE SENT PURSUANT TO SECTION 12.08 OF THE AGREEMENT:
Name of Party or Parties: ______________________________________________________
Name of Contact: ______________________________________________________
Address: ______________________________________________________
Telephone No.: ______________________________________________________
Facsimile No.: ______________________________________________________
Email Address: ______________________________________________________
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI GLOBAL SERVICES, INC.
