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Exhibit 9(a)
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 16th day of January, 1997, by and
between the INTERNATIONAL CURRENCY FUND, a Delaware business trust
(the "Company"), and BISYS FUND SERVICES LIMITED PARTNERSHIP, d/b/a BISYS
FUND SERVICES (the "Administrator"), an Ohio limited partnership.
WHEREAS, the Company is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of several series of shares of beneficial interest
("Shares");
WHEREAS, Administrator is an affiliate of Five Arrows Fund Distributors,
Inc., BISYS Fund Services, Inc. and BISYS Fund Services (Ireland) Limited (each
such entity and any other entity providing services under a BISYS Agreement is
hereinafter referred to as a "BISYS Entity");
WHEREAS, concurrently herewith, Administrator and the other BISYS
Entities are entering into other agreements to provide services to the Company,
Five Arrows Short-Term Investment Trust, and Five Arrows Cash Management Fund
PLC (such agreements and any other comparable agreements in effect from time to
time being referred to collectively as the "BISYS Agreements"); and
WHEREAS, the Company desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
such series of the Company as the Company and the Administrator may agree on
("Portfolios") and as listed on Schedule A attached hereto and made a part of
this Agreement, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Company and the Administrator hereby agree as
follows:
ARTICLE 1. Retention of the Administrator. The Company hereby retains the
Administrator to act as the administrator of the Portfolios and to furnish the
Portfolios with the management and administrative services as set forth in
Article 2 below. The Administrator hereby accepts such employment to perform
the duties set forth below. The Company consents to the performance of certain
services hereunder by Administrator's affiliate, BISYS Fund Services (Ireland)
Limited ("BISYS Ireland"); provided, however, that Administrator shall be fully
responsible for the acts and omissions of BISYS Ireland and shall not be
relieved of any of its responsibilities hereunder by any such delegation.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Company in any way and
shall not be deemed an agent of the Company.
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ARTICLE 2. Administrative Services. The Administrator shall perform
administrative services in connection with the operations of the Portfolios,
and, on behalf of the Company, will investigate, assist in the selection of,
supervise the performance by and conduct relations with custodians,
depositories, accountants, legal counsel, underwriters, brokers and dealers,
corporate fiduciaries, insurers, banks and persons in any other capacity deemed
to be necessary or desirable for the Portfolios' operations. The Administrator
shall provide the Trustees of the Company with such reports regarding
investment performance as they may reasonably request but shall have no
responsibility for supervising the performance by any investment adviser or
sub-adviser of its responsibilities.
The Administrator shall provide the Company with regulatory reporting, all
necessary office space, equipment, personnel, compensation and facilities
(including facilities for Shareholders' and Trustees' meetings) for handling
the affairs of the Portfolios and such other services as the Administrator
shall, from time to time, determine to be necessary to perform its obligations
under this Agreement. In addition, at the request of the Board of Trustees, the
Administrator shall make reports to the Company's Trustees concerning the
performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator shall:
(a) calculate contractual Company expenses and control all disbursements
for the Company, and, as appropriate, compute the Company's yields,
total return, expense ratios, portfolio, turnover rate and, if
required, portfolio average dollar-weighted maturity;
(b) assist Company counsel with the preparation of prospectuses,
statements of additional information, registration statements and
proxy materials;
(c) prepare such reports, applications and documents (including reports
regarding the sale and redemption of Shares as may be required in
order to comply with Federal and state securities law) as may be
necessary or desirable to register the Company's Shares with state
securities authorities, monitor the sale of Company Shares for
compliance with state securities laws, and file with the appropriate
state securities authorities the registration statements and reports
for the Company and the Company's Shares and all amendments thereto,
as may be necessary or convenient to register and keep effective the
Company and the Company's Shares with state securities authorities to
enable the Company to make a continuous offering of its Shares;
(d) develop and prepare, with the assistance of the Company's investment
adviser, communications to Shareholders, including the annual report
to Shareholders, coordinate the mailing of prospectuses, notices,
proxy statements, proxies and other reports to Company Shareholders,
and supervise and facilitate the proxy solicitation process for all
shareholder meetings, including the tabulation of shareholder votes;
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(e) administer contracts on behalf of the Company with, among others, the
Company's investment adviser, distributor, custodian, transfer agent
and fund accountant;
(f) supervise the Company's transfer agent with respect to the payment of
dividends and other distributions to Shareholders;
(g) calculate performance data of the Portfolios for dissemination to
information services covering the investment company industry
including, without limitation, calculation of one, five and ten year
total returns and such other measures of performance reasonably
requested by the Company;
(h) coordinate and supervise the preparation and filing of the Company's
tax returns;
(i) examine and review the operations and performance of the various
organizations providing services to the Company or any Portfolio of
the Company, including, without limitation, the Company's investment
adviser, distributor, custodian, fund accountant, transfer agent,
outside legal counsel and independent public accountants, and, at the
request of the Board of Trustees, report to the Board on the
performance of organizations;
(j) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout and printing of the
Company's semi-annual and annual reports to Shareholders;
(k) assist with the design, development, and operation of the Portfolios,
including new classes, investment objectives, policies and structure;
(l) provide individuals reasonably acceptable to the Company's Board of
Trustees to serve as officers of the Company, who will be responsible
for the management of certain of the Company's affairs as determined
by the Company's Board of Trustees;
(m) advise the Company and its Board of Trustees on matters concerning the
Company and its affairs;
(n) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Company in
accordance with the requirements of Rules 17g-1 and 17d-1(7) under the
1940 Act as such bonds and policies are approved by the Company's
Board of Trustees;
(o) monitor and advise the Company and its Portfolios on their registered
investment company status under the Internal Revenue Code of 1986, as
amended;
(p) perform all administrative services and functions of the Company and
each
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Portfolio to the extent administrative services and functions are not
provided to the Company or such Portfolio pursuant to the Company's or
such Portfolio's investment advisory agreement, custodian agreement
and fund accounting agreement;
(q) furnish advice and recommendations with respect to other aspects of
the business and affairs of the Portfolios as the Company and the
Administrator shall determine desirable; and
(r) prepare and file with the SEC the semi-annual report for the Company
on Form N-SAR and all required notices pursuant to Rule 24f-2.
The Administrator shall perform such other services for the Company that
are mutually agreed upon by the parties from time to time. Such services may
include performing internal audit examinations; mailing the annual reports of
the Portfolios; preparing an annual list of Shareholders; and mailing notices
of Shareholders' meetings, proxies and proxy statements, for all of which the
Company will pay the Administrator's out-of-pocket expenses.
ARTICLE 3. Allocation of Charges and Expenses.
(A) The Administrator. The Administrator shall furnish at its own expense
the executive, supervisory and clerical personnel necessary to perform its
obligations under this Agreement. The Administrator shall also provide the
items which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Company as well as all Trustees of the
Company who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Company retained by the Trustees of the
Company to perform services on behalf of the Company.
(B) The Company. The Company assumes and shall pay or cause to be paid all
other expenses of the Company not otherwise allocated herein, including,
without limitation, organization costs, taxes, expenses for legal and auditing
services, the expenses of preparing (including typesetting), printing and
mailing reports, prospectuses, statements of additional information, proxy
solicitation material and notices to existing Shareholders, all expenses
incurred in connection with issuing and redeeming Shares, the costs of
custodial services, the cost of initial and ongoing registration of the Shares
under Federal and state securities laws, fees and out-of-pocket expenses of
Trustees who are not affiliated persons of the Administrator or the Investment
Adviser to the Company or any affiliated corporation of the Administrator or
the Investment Adviser, insurance, interest, brokerage costs, litigation and
other extraordinary or nonrecurring expenses, and all fees and charges of
investment advisers to the Company.
ARTICLE 4. Compensation of the Administrator.
(A) Administration Fee. For the services to be rendered, the facilities
furnished and
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the expenses assumed by the Administrator pursuant to this Agreement, the
Company shall pay to the Administrator compensation at an annual rate specified
in Schedule A attached hereto. Such compensation shall be calculated and
accrued daily, and paid to the Administrator monthly.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, the Administrator's compensation
for that part of the month in which this Agreement is in effect shall be
prorated in a manner consistent with the calculation of the fees as set forth
above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
(B) Survival of Compensation Rights. All rights of compensation under this
Agreement for services performed as of the termination date shall survive the
termination of this Agreement.
ARTICLE 5. Limitation of Liability of the Administrator. The duties of the
Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Administrator
hereunder. Administrator shall use its best efforts to ensure the accuracy of
all services performed under this Agreement, but shall not be liable to the
Company for any action taken or omitted by Administrator in the absence of bad
faith, willful misfeasance, negligence or from reckless disregard by it of its
obligations and duties. The Company agrees to indemnify and hold harmless
Administrator, its employees, agents, directors, officers and nominees from and
against any and all claims, demands, actions and suits, whether groundless or
otherwise, and from and against any and all judgments, liabilities, losses,
damages, costs, charges, counsel fees and other expenses of every nature and
character arising out of or in any way relating to Administrator's actions or
omissions with respect to the performance of services under this Agreement or
based, if applicable, upon reasonable reliance on information, records,
instructions or requests given or made to Administrator by the Company,
provided that this indemnification shall not apply to actions or omissions of
Administrator in cases of its own bad faith, willful misfeasance, negligence or
from reckless disregard by it of its obligations and duties.
For purposes of this Agreement, actions or omissions by any BISYS Entity
or its employees, agents, directors, officers or nominees made in any capacity
shall be deemed to be actions or omissions by Administrator. Any actions or
omissions by a person who is both an officer or employee of the Company and an
officer or employee of any BISYS Entity shall be deemed to have been committed
solely in such person's capacity as an officer or employee of such BISYS
Entity.
The Company's agreement to indemnify Administrator, its partners and
employees and any such controlling person, as aforesaid, is expressly
conditioned upon the Company being notified of any action brought against the
Administrator, its partners or employees, or any such controlling person, such
notification to be given in accordance with Article 12 hereof within 10 days
after the summons or other first legal process shall have been served. The
failure to so notify the Company of any such action shall not relieve the
Company from any liability which the Company may have to the person against
whom such action is brought by reason of any such
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untrue, or allegedly untrue, statement or omission, or alleged omission,
otherwise than with respect to incremental liabilities resulting from such
failure. The Company will be entitled to assume the defense of any suit brought
to enforce any such claim, demand or liability, but, in such case, such defense
shall be conducted by counsel of good standing chosen by the Company and
approved by the Administrator, which approval shall not be unreasonably
withheld. In the event the Company elects to assume the defense of any such
suit and retain counsel of good standing approved by the Administrator, the
defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them; but in case the Company does not
elect to assume the defense of any such suit, or in case the Administrator
reasonably does not approve of counsel chosen by the Company, the Company will
reimburse the Administrator, its partners and employees, or the controlling
person or persons named as defendant or defendants in such suit, for the fees
and expenses of any counsel retained by the Administrator or them.
The Administrator may apply to the Company at any time for instructions
and may consult counsel for the Company and with accountants and other experts
with respect to any matter arising in connection with the Administrator's
duties, and the Administrator shall not be liable or accountable for any
reasonable action taken or omitted by it in good faith in accordance with such
instruction or with the opinion of such counsel, accountants or other experts.
Also, the Administrator shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. The Administrator will not be held to have
notice of any change of authority of any officers, employees or agents of the
Company until receipt of written notice thereof from the Company.
ARTICLE 6. Activities of the Administrator. The services of the
Administrator rendered to the Company are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that directors, officers, employees
and Shareholders of the Company are or may be or become interested in the
Administrator, as officers, employees or otherwise and that partners, officers
and employees of the Administrator and its counsel are or may be or become
similarly interested in the Company, and that the Administrator may be or
become interested in the Company as a Shareholder or otherwise.
ARTICLE 7. Duration of this Agreement. The Term of this Agreement shall be
as specified in Schedule A hereto.
ARTICLE 8. Assignment. This Agreement shall not be assignable by either
party without the written consent of the other party; the Administrator may
also at its expense, subcontract with any entity or person concerning the
provision of the services contemplated hereunder with the express prior written
consent of the Company, provided that, to the extent that the services
delegated involve only such ministerial tasks as are routinely and commonly
delegated by similarly situated service providers, such consent shall not be
unreasonably
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withheld. The Administrator shall not, however, be relieved of any of its
obligations under this Agreement by the appointment of such subcontractor and
provided further, that the Administrator shall be responsible, to the extent
provided in Article 5 hereof, for all acts of such subcontractor as if such
acts were its own. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns.
ARTICLE 9. Amendments. This Agreement may be amended by the parties by a
duly authorized written instrument.
ARTICLE 10. Certain Records. The Administrator shall maintain customary
records in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by the Administrator
on behalf of the Company shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Company and will be made
available to or surrendered promptly to the Company on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Company and follow the
Company's instructions as to permitting or refusing such inspection; provided
that the Administrator may exhibit such records to any person in any case where
it is advised by its counsel that it may be held liable for failure to do so,
unless (in cases involving potential exposure only to civil liability) the
Company has agreed to indemnify the Administrator against such liability.
ARTICLE 11. Definitions of Certain Terms. The terms "interested person"
and "affiliated person," when used in this Agreement, shall have the respective
meanings specified in the 1940 Act and the rules and regulations thereunder,
subject to such exemptions as may be granted by the Securities and Exchange
Commission.
ARTICLE 12. Notice. Any notice, demand, request or other communication
which may be required or contemplated herein shall be sufficiently given if (i)
given either by facsimile transmission or telex, by reputable overnight
delivery service, postage prepaid, or by registered or certified mail, postage
prepaid and return receipt requested, to the address indicated below or to such
other address as any party hereto may specify as provided herein, or (ii)
delivered personally at such address.
If to the Company: c/o Rothschild International Asset Management Limited
Five Arrows House
St. Xxxxxxx'x Xxxx
Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx
Attention: Xxxxx X. Xxxxxxxxx
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with a copy to:
Xxxxxxxx R.T. Xxxxxx
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
If to Administrator: 0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000.
Attention: Xxxxxx X. Xxxxxxxx
ARTICLE 13. Limitation of Liability of the Trustees and Shareholders. It
is expressly agreed that the obligations of the Company hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents or
employees of the Company personally, but shall bind only the trust property of
the Company. The execution and delivery of this Agreement have been authorized
by the Trustees, and this Agreement has been signed and delivered by an
authorized officer of the Company, acting as such, and neither such
authorization by the Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the trust property of
the Company as provided in the Company's Agreement and Declaration of Trust.
ARTICLE 14. Several Obligations of the Portfolios. The Company is a series
company with multiple series, the Portfolios, and has entered into this
Agreement on behalf of those series, as amended from time to time on notice to
the Administrator. With respect to any obligation of the the Company on behalf
of any Portfolio arising hereunder, the Administrator shall look for payment or
satisfaction of such obligations solely to the assets and property of the
Portfolio to which such obligation relates as though the Company had separately
contracted with the Administrator by separate written instrument with respect
to each Portfolio. In addition, this Agreement may be terminated with respect
to one or more Portfolios without affecting the rights, duties or obligations
of any of the other Portfolios.
ARTICLE 15. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Ohio and the applicable provisions of the 1940
Act. To the extent that the applicable laws of the State of Ohio, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
ARTICLE 16. Force Majeure. If the Administrator is prevented, hindered or
delayed from or in performing any of its obligations under this Agreement by a
Force Majeure Event (as defined below), then:
(a) (i) the Administrator's obligations under this Agreement shall
be suspended for so long as the Force Majeure Event
continues and to the extent that it is so prevented,
hindered or delayed;
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(ii) as soon as possible after the commencement of the Force
Majeure Event the Administrator shall notify the Company in
writing of the occurrence of the Force Majeure Event, the
date of commencement of the Force Majeure Event and the
effect of the Force Majeure Event on the Administrator's
ability to perform its obligations under this Agreement; and
(iii) as soon as possible after the cessation of the Force Majeure
Event the Administrator shall notify the Company in writing
of the cessation of the Force Majeure Event and shall resume
performance of its obligations under this Agreement.
(b) If the Force Majeure continues for more than one month after the
commencement of the Force Majeure Event either party may terminate
this Agreement by giving not less than seven days notice in writing to
the other party.
(c) "Force Majeure Event" means any event beyond the reasonable control of
a party including, without limitation, acts of God, war, riot, civil
commotion, malicious damage, compliance with any law or governmental
order, rule, regulation or direction, accident, breakdown of plant or
machinery, fire, flood or storm.
ARTICLE 17. Miscellaneous. This Agreement may be executed in two or more
counterparts, each of which when so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same
instrument. For purposes of this Agreement, no officer of the Company who is
an employee of any BISYS Entity shall be deemed to be an authorized
representative of the Company for the purposes of giving or receiving any
notice, consent, or other communication pursuant to Articles 5, 8, 10, 16 and
Schedule A of this Agreement or not in the ordinary course of business. No
provision of this Agreement shall be deemed to limit the duties or obligations
of Administrator or any other BISYS Entity under any other BISYS Agreement.
Paragraph headings in this Agreement are included for convenience only and are
not to be used to construe or interpret this Agreement.
[Remainder of the page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
INTERNATIONAL CURRENCY FUND
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------
Attest: /s/ X. Xxxxxxxx
--------------------------
BISYS FUND SERVICES LIMITED
PARTNERSHIP
BY: BISYS FUND SERVICES, INC.,
GENERAL PARTNER
By: /s/ J. Xxxxx Xxxxx
------------------------------
Attest: /s/ Xxxxx Xxxxx
--------------------------
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SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF JANUARY 16, 1997
BETWEEN INTERNATIONAL CURRENCY FUND
AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
Portfolios: This Agreement shall apply to all Portfolios of the
International Currency Fund, either now or hereafter created.
The current portfolios of The International Currency Fund, are
set forth below: U.S. Dollar, Pound Sterling, Deutschemark and
Canadian Dollar (collectively, the "Portfolios").
Fees: Pursuant to Article 4, in consideration of services rendered
and expenses assumed pursuant to this Agreement, the Company
will pay the Administrator on the first business day of each
month, or at such time(s) as the Administrator shall request
and the parties hereto shall agree, a fee computed daily and
paid as specified below at the annual rate equal to .05% of
each Portfolio's average daily net assets. The fee for the
period from the day of the month this Agreement is entered into
until the end of that month shall be prorated according to the
proportion which such period bears to the full monthly period.
Upon any termination of this Agreement before the end of any
month, the fee for such part of a month shall be prorated
according to the proportion which such period bears to the full
monthly period and shall be payable upon the date of
termination of this Agreement.
For purposes of determining the fees payable to the
Administrator, the value of the net assets of a particular
Portfolio shall be computed in the manner described in the
Company's Declaration of Trust or in the Prospectus or
Statement of Additional Information respecting that Portfolio
as from time to time is in effect for the computation of the
value of such net assets in connection with the determination
of the liquidating value of the shares of such Portfolio.
The parties hereby confirm that the fees payable hereunder
shall be applied to each Portfolio as a whole, and not to
separate classes of shares within the portfolios.
Term: Pursuant to Article 7, the term of this Agreement shall commence
on January 16, 1997 and shall remain in effect through January
16, 1999 ("Initial Term"). Thereafter, if not earlier terminated
as herein provided, it shall continue from year to year so long
as such continuance with respect to any such Portfolio is
approved at least annually by the Trustees of the Company.
Notwithstanding the foregoing, this Agreement may be terminated
by either party, without payment of any penalty, except for the
liquidated damages described below, at any time with respect to
any Portfolio upon not less than sixty (60)
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days' prior written notice to the other party.
If this Agreement is terminated without Cause during the
Initial Term hereof, or during any subsequent annual term, and
if the Administrator is not continuing to be compensated as
provided in Article 4 of this Agreement, then the Company shall
make a one-time cash payment, as liquidated damages, to the
Administrator equal to the balance due the Administrator for
the remainder of such term, assuming for purposes of
calculation of the payment that the asset level of the Company
on the effective date of such Termination would remain constant
for the balance of the contract term. Notwithstanding the
foregoing, the Company may terminate this Agreement at any time
for Cause, without incurring any additional cost and without
liquidated damages. For purposes of the Agreement, the term
"Cause" shall mean (i) dishonest statements or acts with
respect to the Company or any affiliate thereof; (ii) failure
to perform to the reasonable satisfaction of the Company's
Board of Trustees a substantial portion of the Administrator's
duties and responsibilities hereunder; (iii) gross negligence
or willful misconduct of the Administrator with respect to the
Company or any affiliate thereof; or (iv) material breach by
the Administrator of any of the Administrator's obligations
hereunder.
Notwithstanding the foregoing, after such termination for so
long as the Administrator, with the written consent of the
Company, in fact continues to perform any one or more of the
services contemplated by this Agreement or any schedule or
exhibit hereto, the provisions of this Agreement, including
without limitation the provisions dealing with indemnification,
shall continue in full force and effect. Compensation due the
Administrator and unpaid by the Company upon such termination
shall be immediately due and payable upon and notwithstanding
such termination. The Administrator shall be entitled to
collect from the Company, in addition to the compensation
described in this Schedule A, the amount of all of the
Administrator's cash disbursements for services in connection
with the Administrator's activities in effecting such
termination, including without limitation, the delivery to the
Company and/or its designees of the Company's property,
records, instruments and documents, or any copies thereof.
Subsequent to such termination, for a reasonable fee, the
Administrator will provide the Company with reasonable access
to any Company documents or records remaining in its
possession.
