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ADMINISTRATIVE SERVICE AGREEMENT
BETWEEN
DCM SERIES TRUST
AND
ORBITEX FUND SERVICES, INC.
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INDEX
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1. APPOINTMENT AND DELIVERY OF DOCUMENTS...................................3
2. DUTIES OF THE ADMINISTRATOR.............................................4
ADMINISTRATION.....................................................4
FUND ACCOUNTING....................................................6
3. FEES AND EXPENSES.........................................................8
4. STANDARD OF CARE, INDEMNIFICATION AND RELIANCE............................8
5. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY...........................9
6. EXPENSES ASSUMED AS ADMINISTRATOR........................................10
7. REPORTS..................................................................10
8. CONFIDENTIALITY..........................................................11
9. PROPRIETARY INFORMATION..................................................11
10. ACCOUNTS AND RECORDS.....................................................11
11. ADDITIONAL FUNDS AND CLASSES.............................................12
12. ASSIGNMENT..............................................................12
13. EFFECTIVENESS, DURATION AND TERMINATION.................................12
14. MISCELLANEOUS............................................................13
SCHEDULE A...................................................................15
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(A) ADMINISTRATIVE SERVICE FEE:..............................................15
(B) EXPENSES.................................................................15
(C) STATE REGISTRATION (BLUE SKY) FILING FEE.................................15
(D) SPECIAL REPORTS..........................................................15
SCHEDULE B...................................................................16
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ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made the 13th day of October 2002, as amended October 12,
2002, by and between DCM Series Trust, a Massachusetts business trust, having
its principal office and place of business 0 Xxxxx Xxxxxx, Xxxxxx, XX 02459(the
"Trust"), and Orbitex Fund Services, Inc., a New York corporation having its
principal office and place of business at the Hauppauge Corporate Center, 000
Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 (the "OFD").
WHEREAS, the Trust is offering shares of beneficial interest (the
"Shares'") in an investment portfolio known as the "DCM Growth Fund" (the
"Fund"), which is a series of the Trust; and
WHEREAS, the Fund is a non-diversified open-end management investment
company registered with the United States Securities and Exchange Commission
(the "SEC") under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Trust desires that OFD perform certain administrative and
fund accounting services for Fund listed in Schedule B hereto and OFD is willing
to provide those services on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Trust and OFS hereby agree as follows:
1. APPOINTMENT AND DELIVERY OF DOCUMENTS
(a) The Trust, on behalf of each Fund listed in Schedule B, hereby
appoints OFS, and OFS hereby agrees to act as administrator and fund accountant
of the Trust for the period and on the terms set forth in this Agreement.
(b) In connection therewith, the Trust has delivered to OFS copies of
(i) the Trust's Agreement, Declaration of Trust and Bylaws
(collectively, as amended from time to time, "Organizational
Documents");
(ii) the Trust's Registration Statement on Form N-1A and all
amendments thereto filed with the United States Securities and Exchange
Commission ("SEC") pursuant to the Securities Act of 1933, as amended
("Securities Act"), or the 1940 Act ("Registration Statement");
(iii) the Trust's notification of registration under the 1940 Act
on Form N-8A as filed with the SEC;
(iv) the Trust's current Prospectus and Statement of Additional
Information for each Fund (collectively, as currently in effect and as
amended or supplemented, the "Prospectus");
(v) each current plan of distribution or similar document adopted
by the Trust under Rule 12b-1 under the 1940 Act ("Plan") and each
current shareholder service plan or similar document adopted by the
Trust ("Service Plan");
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(vi) all procedures adopted by the Trust with respect to Rule
17a-7 affiliated transactions; and shall promptly furnish OFS with all
amendments of or supplements to the foregoing.
(c) The Trust shall deliver to OFS a certified copy of the resolution
of the Board of Trustees of the Trust ("Board") appointing OFS and authorizing
the execution and delivery of this Agreement.
2. DUTIES OF OFS
ADMINISTRATION
(a) Subject to the direction and control of the Board, OFS shall manage
all aspects of the Trust's operations with respect to the Fund(s) except those
that are the responsibility of any other service provider hired by the Trust,
all in such manner and to such extent as may be authorized by the Board;
(b) OFS shall provide persons suitable to the Board to serve as
officers of the Trust;
(c) OFS will provide the Trust with adequate general office space,
communication facilities and personnel necessary to perform the services for the
Trust described in this Section 2;
(d) Oversee the performance of administrative and professional services
rendered to the Trust by others, including its custodian, transfer agent, fund
accountant and dividend disbursing agent as well as legal, auditing, shareholder
servicing and other services performed for the Trust;
(e) Assist the Fund's investment adviser in monitoring Fund holdings
for compliance with the Prospectus, SEC investment and IRS taxation limitations
and restrictions and assist in preparation of periodic compliance reports, as
applicable;
(f) Prepare and coordinate the printing of semi-annual and annual
financial statements;
(g) Prepare selected management reports for performance and compliance
analyses agreed upon by the Trust and Administrator from time to time;
(h) Advise the Trust and the Board on matters concerning the Trust and
its affairs;
(i) With the cooperation of the counsel to the Trust, the investment
advisers, officers of the Trust and other relevant parties, prepare and
disseminate materials for meetings of the Board, including agendas and selected
financial information as agreed upon by the Trust and OFS from time to time;
attend and participate in Board meetings to the extent requested by the Board;
and prepare or cause to be prepared minutes of the meetings of the Board;
(j) Determine income and capital gains available for distribution and
calculate distributions required to meet regulatory, income, and excise tax
requirements, to be reviewed by the Trust's independent public accountants;
(k) Prepare the Trust's federal, state, and local tax returns to be
reviewed and signed by the Trust's independent public accountants;
(l) Prepare and maintain the Trust's operating expense budget to
determine proper expense accruals to be charged to each Fund in order to
calculate it's daily net asset value;
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(m) In consultation with counsel for the Trust, assist in and oversee
the preparation, filing, printing and where applicable, dissemination to
shareholders of the following:
(i) amendments to the Trust's Registration Statement on Form
N-1A;
(ii) periodic reports to the Trustees, shareholders and the
Commission, including but not limited to annual reports and semi-annual
reports;
(iii) notices pursuant to Rule 24f-2;
(iv) proxy materials; and
(v) reports to the SEC on Form N-SAR.
(n) Coordinate the Trust's annual or SEC audit by:
(i) assisting the Trust's independent auditors, or, upon approval
of the Trust, any regulatory body, in any requested review of the
Trust's accounts and records;
(ii) providing appropriate financial schedules (as requested by
the Trust's independent public accountants or SEC examiners); and
(iii) providing office facilities as may be required.
(o) After consultation with counsel for the Trust and the investment
adviser, determine the jurisdictions in which Shares of the Trust shall be
registered or qualified for sale; register, or prepare applicable filings with
respect to, the Shares with the various state and other securities commissions,
provided that all fees for the registration of Shares or for qualifying or
continuing the qualification of the Trust shall be paid by the Trust;
(p) Monitor sales of Shares, ensure that the Shares are properly and
duly registered with the SEC;
(q) Oversee the calculation of performance data for dissemination to
information services covering the investment company industry, for sales
literature of the Trust and other appropriate purposes;
(r) Prepare, or cause to be prepared, expense and financial reports,
including Fund budgets, expense reports, pro-forma financial statements, expense
and profit/loss projections and fee waiver/expense reimbursement projections on
a periodic basis;
(s) Prepare authorization for the payment of Trust expenses and pay,
from Trust assets, all bills of the Trust;
(t) Provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information with respect to investment companies;
(u) Assist the Trust in the selection of other service providers, such
as independent accountants, law firms and proxy solicitors and perform such
other record keeping, reporting and other tasks as may be specified from time to
time in the procedures adopted by the Board, provided, that OFS need not begin
performing any such task except upon sixty (60) days' written notice and
pursuant to mutually acceptable compensation agreements;
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(v) OFS shall provide such other services and assistance relating to
the affairs of the Trust as the Trust may, from time to time, reasonably request
pursuant to mutually acceptable compensation agreements;
(w) Except with respect to OFS' duties as specifically provided in this
Agreement, the Trust assumes all responsibility for ensuring that the Trust
complies with all applicable requirements of the Securities Act, the 1940 Act
and any laws, rules and regulations of governmental authorities with
jurisdiction over the Trust. All references to any law in this Agreement shall
be deemed to include reference to the applicable rules and regulations
promulgated under authority of the law and all official interpretations of such
law or rules or regulations; and
(x) In order for OFS to perform the services required by this Section
2, the Trust (i) shall cause all service providers to the Trust to furnish any
and all information to OFS, and assist OFS as may be required and (ii) shall
ensure that OFS has access to all records and documents maintained by the Trust
or any service provider to the Trust.
FUND ACCOUNTING
(a) SERVICES. OFS may from time to time adopt procedures, or modify its
procedures, to implement the terms of this Section. With respect to each Fund,
OFS shall perform the following services:
(i) Timely calculate the net asset value per share with the frequency
prescribed in each Fund's then-current Prospectus and transmit
the Fund's net asset value to NASDAQ, and communicate such net
asset value to the Trust and its transfer agent;
(ii) Calculate each item of income, expense, deduction, credit, gain
and loss, if any, as required by the Trust and in conformance
with generally accepted accounting practices ("GAAP"), SEC
Regulation S-X (or any successor regulation) and the Internal
Revenue Code of 1986, as amended (or any successor laws)("Code");
(iii) OFS shall prepare and maintain on behalf of the Trust all books
and records of each Fund, and each Class thereof, as required by
Rule 31a-1 under the 1940 Act, and as such rule or any successor
rule, may be amended from time to time, that are applicable to
the fulfillment of OFS' duties hereunder, as well as any other
documents necessary or advisable for compliance with applicable
regulations as may be mutually agreed to between the Trust and
OFS. Without limiting the generality of the foregoing, OFS will
prepare and maintain the following records upon receipt of
information in proper form from the Fund or its authorized
agents:
o Cash receipts journal
o Cash disbursements journal
o Dividend record
o Purchase and sales - portfolio securities journals
o Subscription and redemption journals
o Security ledgers
o Broker ledger
o General ledger
o Daily expense accruals
o Daily income accruals
o Securities and monies borrowed or loaned and collateral
therefore
o Foreign currency journals
o Trial balances
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(iv) Make such adjustments over such periods as the Trust's
administrator deems necessary, and communicates to OFS in
writing, to reflect over-accruals or under-accruals of estimated
expenses or income;
(v) Provide the Trust and its investment adviser with daily portfolio
valuation, net asset value calculation and other standard
operational reports as requested from time to time;
(vi) Provide all raw data available from its mutual fund accounting
system for management's or the administrator's preparation of the
following:
1. Semi-annual financial statements;
2. Semi-annual form N-SAR and Annual tax returns;
4. Financial data necessary to update form N-1A; and
5. Annual proxy statement.
(vii) Provide facilities to accommodate annual audit by the Trust's
independent accountants and, upon approval of the Trust, any
audits or examinations conducted by the SEC or any other
governmental or quasi-governmental entities with jurisdiction;
(viii) Transmit to and receive from each Fund's transfer agent
appropriate data on a daily basis and daily reconcile Shares
outstanding and other data with the transfer agent;
(ix) Periodically reconcile all appropriate data with each Fund's
custodian; and
(x) Perform such other record keeping, reporting and other tasks as
may be specified from time to time in the procedures adopted by
the Board; provided, that OFS need not begin performing any such
task except upon sixty (60) days written notice and pursuant to
mutually acceptable compensation agreements.
OFS shall, for all purposes herein, be deemed to be an independent
contractor and shall, unless otherwise expressly provided or authorized, have no
authority to act for or represent the Trust in any way or otherwise be deemed an
agent of the Trust.
(b) MAINTENANCE OF AND ACCESS TO RECORDS. OFS shall maintain records
relating to its services, such as journals, ledger accounts and other records,
as are required to be maintained under the 1940 Act and, specifically, Rule
31a-1 there under. The books and records pertaining to the Trust that are in
possession of OFS shall be the property of the Trust. The Trust, or the Trust's
authorized representatives, shall have access to such books and records at all
times during OFS' normal business hours. Upon the reasonable request of the
Trust, copies of any such books and records shall be provided promptly by OFS to
the Trust or the Trust's authorized representatives. In the event the Trust
designates a successor that assumes any of OFS' obligations hereunder, OFS
shall, at the expense and direction of the Trust, transfer to such successor all
relevant books, records and other data established or maintained by OFS under
this Agreement.
(c) INSPECTION OF RECORDS. In case of any requests or demands for the
inspection of the records of the Trust maintained by OFS, OFS will endeavor to
notify the Trust and to secure instructions from an authorized officer of the
Trust as to such inspection. OFS shall abide by the Trust's instructions for
granting or denying the inspection; provided, however, that OFS may grant the
inspection without instructions if OFS is advised by counsel to OFS that failure
to do so will result in liability to OFS.
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OFS shall for all purposes herein, be deemed to be an independent contractor and
shall, unless otherwise expressly provided or authorized, have no authority to
act for or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
3. FEES AND EXPENSES
(a) FEES. For the services provided by OFS pursuant to this Agreement,
the Trust, on behalf of each Fund, agrees to pay OFS the fees set forth in
Schedule A hereto. Fees will begin to accrue for each Fund on the latter of the
date of this Agreement or the date of commencement of services to the Fund.
(b) EXPENSES. In addition to the fees paid under subsection (a), the
Trust agrees to reimburse OFS for out-of-pocket expenses or advances incurred by
OFS for the items set out in Schedule A. In addition, the Trust will reimburse
any other expenses incurred by OFS at the request or with the consent of the
Trust.
(c) FEE CHANGES. The fees, out-of pocket expenses and advances
identified in subsections (a) and (b) above may be changed from time to time
subject to written agreement between the Trust and OFS.
(d) DUE DATE. All fees under subsection (a) above are due and payable
within ten (10) days of receipt of the invoice. All expenses under subsection
(b) above are due and payable within fifteen (10) days of receipt of the
invoice.
4. STANDARD OF CARE, INDEMNIFICATION AND RELIANCE
(a) STANDARD OF CARE. OFS shall be held to the exercise of reasonable
care in carrying out the provisions of the Agreement, but shall be without
liability to the Fund for any action taken or omitted by it in good faith
without gross negligence, bad faith, willful misconduct or reckless disregard of
its duties hereunder. OFS shall be entitled to rely upon and may act upon the
accounting records and reports generated by the Fund, advice of the Fund, or of
counsel for the Fund and upon statements of the Fund's independent accountants,
and shall be without liability for any action reasonably taken or omitted
pursuant to such records and reports or advice, provided that such action is
not, to the knowledge of the Administrator, in violation of applicable federal
or state laws or regulations, and provided further that such action is taken
without negligence, bad faith, willful misconduct or reckless disregard of its
duties.
(b) INDEMNIFICATION. OFS shall not be liable to the Fund for any error
of judgment or mistake of law or for any loss arising out of any act or omission
by OFS in the performance of its duties hereunder except as hereinafter set
forth. Nothing herein contained shall be construed to protect the Administrator
against any liability to the Fund or their security holders to which OFS shall
otherwise be subject by reason of willful misfeasance, bad faith, negligence in
the performance of its duties on behalf of the Fund, reckless disregard of OFS'
obligations and duties under this Agreement or the willful violation of any
applicable law.
(c) RELIANCE. OFS shall not be liable for any action taken or failure
to act in good faith reliance upon:
(ii) advice from the Trust or from counsel, who may be counsel to the
Trust or counsel to OFS ;
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(iii) any oral instruction which it receives and which it reasonably
believes in good faith was transmitted by the person or persons
authorized by the Board to give such oral instruction (OFS shall
have no duty or obligation to make any inquiry or effort of
certification of such oral instruction.);
(iv) any written instruction or certified copy of any resolution of
the Board, and OFS may rely upon the genuineness of any such
document, copy or facsimile thereof reasonably believed in good
faith by OFS to have been validly executed; or
(v) any signature, instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report,
notice, consent, order, or other document reasonably believed in
good faith by OFS to be genuine and to have been signed or
presented by the Trust or other proper party or parties;
and OFS shall not be under any duty or obligation to inquire into the validity
or invalidity or authority or lack of authority of any statement, oral or
written instruction, resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice, consent, order, or
any other document or instrument which OFS reasonably believes in good faith to
be genuine.
(d) ERRORS OF OTHERS. OFS shall not be liable for the errors of other
service providers to the Trust, including the errors of pricing services (other
than to pursue all reasonable claims against the pricing service based on the
pricing services' standard contracts entered into by OFS) and errors in
information provided by an investment adviser (including prices and pricing
formulas and the untimely transmission of trade information), custodian or
transfer agent to the Trust.
(e) NAV ERRORS. If an error in pricing the NAV is equal to or greater
than 1/2 of 1.0% of the NAV and the effect on any shareholder is greater than
$25.00, OFS will reprocess the activity for shareholders who are impacted by
$25.00 or more and the responsible party will reimburse the Fund for the amount
of the net loss and shall reimburse OFS for all reasonable reprocessing costs.
If the error in pricing the NAV is less than 1/2of 1.0% of the NAV and the Fund
is in a net loss position because of a pricing error greater than $0.01 per
share, the responsible party will reimburse the Fund for the amount of the net
loss.
(f) DEFINITION OF "NAV DIFFERENCE". For purposes of this Agreement, (i)
the NAV Difference shall mean the difference between the NAV at which a
shareholder purchase or redemption should have been effected ("Recalculated
NAV") and the NAV at which the purchase or redemption is effected, divided by
the Recalculated NAV, (ii) NAV Differences and any OFS liability arising there
from are to be calculated each time the NAV of a Fund or Class is calculated,
(iii) in calculating any NAV Difference for which OFS would otherwise be liable
under this Agreement for a particular NAV error, Fund losses and gains shall be
netted and (iv) in calculating any NAV Difference for which OFS would otherwise
be liable under this Agreement for a particular NAV error that continues for a
period covering more than one NAV determination, Fund losses and gains for the
period shall be netted.
5. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABLILITY
The Trustee of the Trust and the shareholder of the Fund shall not be
liable for any obligations of the Trust or of the Funds under this Agreement,
and OFS agrees that, in asserting any rights or claims under this Agreement, it
shall look only to the assets and property of the Fund (or Funds) to which OFS'
right or claims relate in settlement of such rights or claims, and not to the
Trustees of the Trust or the shareholders of the Funds. The term "DCM Series
Trust" means and refers to the Trustees from time to time serving under the
Trust's Declaration of Trust as the same may subsequently thereto have been or
subsequently hereto be, amended. It is expressly agreed that the obligations of
the Trust hereunder shall not be binding upon any of the trustees, shareholders,
ominewws, officers, agents or employees of the Trust personally, but bind only
the trust property of the Trust, as provided in the Declaration of Trust of the
Trust. The execution and delivery of this Agreement have been authorized by the
trustees and shareholders of the Trust and signed by the officers of the Trust,
acting as such, and neither such authorization by such trustees and shareholders
nor such execution and delivery by such officers shall be deemed to have been
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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 Trust as provided in
its Declaration Trust. A copy of the Agreement and Declaration of Trust of the
Trust is on file with the Secretary of the Commonwealth of Massachusetts.
EXPENSES ASSUMED AS ADMINISTRATOR
Except as otherwise specifically stated in this Agreement, OFS shall
pay all expenses incurred by it in performing its services and duties as
Administrator. The Trust will bear all other expenses to be incurred in the
operation of the Funds (other than those borne by the Adviser) including:
(a) taxes;
(b) interest;
(c) brokerage fees and commissions, if any;
(d) fees for Trustees who are not officers, directors, partners, employees
or holders of five percent (5%) or more of the outstanding voting
securities of the Adviser or OFS or any of their affiliates;
(e) Securities and Exchange Commission fees;
(f) state blue sky registration or qualification fees;
(g) advisory fees;
(h) charges of custodians;
(i) transfer and dividend disbursing agents' fees;
(j) certain insurance premiums;
(k) outside auditing and legal expenses;
(l) costs of maintaining corporate existence;
(m) costs attributable to shareholder services, including without
limitation telephone and personnel expenses;
(n) costs of preparing and printing Prospectuses for regulatory purposes;
(o) costs of shareholders' reports and Trust meetings; and
(p) any extraordinary expenses.
7. REPORTS
(a) The Trust shall provide to OFS on a quarterly basis a report of a
duly authorized officer of the Trust representing that all information furnished
to OFS during the preceding quarter was true, complete and correct to the best
of its knowledge. OFS shall not be responsible for the accuracy of any
information furnished to it by the Trust, and the Trust shall hold OFS harmless
in regard to any liability incurred by reason of the inaccuracy of such
information.
(b) OFS shall provide to the Board of Trustees of the Trust, on a
quarterly basis, a report, in such a form as OFS and the Trust shall from time
to time agree, representing that, to its knowledge, the Trust was in compliance
with all requirements of applicable federal and state law, including without
limitation, the rules and regulations of the Securities and Exchange Commission
and the Internal Revenue Service, or specifying any instances in which the Trust
was not so in compliance. Whenever, in the course of performing its duties under
this Agreement, OFS determines, on the basis of information supplied to OFS by
the Trust, that a violation of applicable law has occurred, or that, to its
knowledge, a possible violation of applicable law may have occurred or, with the
passage of time, could occur, OFS shall promptly notify the Trust and its
counsel of such violation.
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8. CONFIDENTIALITY
OFS and the Trust agree that all books, records, information, and data
pertaining to the business of the other party, which are exchanged or received
pursuant to the negotiation or the carrying out of this Agreement shall remain
confidential, and shall not be voluntarily disclosed to any other person, except
that OFS may:
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(b) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies; and
(c) release such other information as approved in writing by the Trust,
which approval shall not be unreasonably withheld and may not be withheld where
OFS may be exposed to civil or criminal liability or proceedings for failure to
release the information, when requested to divulge such information by duly
constituted authorities or when so requested by the Trust and the Adviser.
9. PROPRIETARY INFORMATION
(a) PROPRIETARY INFORMATION OF OFS. The Trust acknowledges that the
databases, computer programs, screen formats, report formats, interactive design
techniques, and documentation manuals maintained by OFS on databases under the
control and ownership of OFS or a third party constitute copyrighted, trade
secret, or other proprietary information (collectively, "Proprietary
Information") of substantial value to OFS or the third party. The Trust agrees
to treat all Proprietary Information as proprietary to OFS and further agrees
that it shall not divulge any Proprietary Information to any person or
organization except as may be provided under this Agreement or required by law.
(b) PROPRIETARY INFORMATION OF THE TRUST. OFS acknowledges that the
Shareholder list and all information related to Shareholders furnished to OFS by
the Trust or by a Shareholder in connection with this Agreement (collectively
"Customer Data") constitute proprietary information of substantial value to the
Trust. In no event shall Proprietary Information be deemed Customer Data. OFS
agrees to treat all Customer Data as proprietary to the Trust and further agrees
that it shall not divulge any Customer Data to any person or organization except
as may be provided under this Agreement, as may be directed by the Trust or
required by law.
10. ACCOUNTS AND RECORDS
The accounts and records maintained by OFS shall be the property of the
Funds, and shall be surrendered to the Funds, at the expense of the Funds,
promptly upon request by the Funds, provided that all service fees and expenses
including all reasonable deconversion fees charged by OFS in the performance of
its duties hereunder have been fully paid to the satisfaction of OFS, in the
form in which such accounts and records have been maintained or preserved. OFS
agrees to maintain a back up set of accounts and records of the Funds (which
back-up set shall be updated on at least a weekly basis) at a location other
than that where the original accounts and records are stored. OFS shall assist
the Funds' independent auditors, or, upon approval of the Funds, any regulatory
body, in any requested review of the Funds' accounts and records. OFS shall
preserve the accounts and records, as they are required to be maintained and
preserved by Rule 31a-1.
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11. ADDITIONAL FUNDS AND CLASSES
In the event that the Trust establishes one or more series of Shares or
one or more classes of Shares after the effectiveness of this Agreement, such
series of Shares or classes of Shares, as the case may be, shall become Funds
and Classes under this Agreement. However, either OFS or the Trust may elect in
writing not to make any such series or Classes subject to this Agreement.
12. ASSIGNMENT
This Agreement shall extend to and shall be binding upon the parties
hereto and their respective successors and assigns; PROVIDED, HOWEVER, that this
Agreement shall not be assignable by the Trust without the prior written consent
of OFS.
OFS may subcontract any or all of its responsibilities pursuant to this
Agreement to one or more corporations, trusts, firms, individuals or
associations, which may or may not be affiliated persons of OFS and which agree
to comply with the terms of this Agreement; PROVIDED, HOWEVER, that any such
subcontracting shall not relieve OFS of its responsibilities hereunder. OFS may
pay those persons for their services, but no such payment will increase OFS'
compensation from the Trust.
13. EFFECTIVENESS, DURATION AND TERMINATION
(a) EFFECTIVE DATE. This Agreement shall become effective on the date
first above written.
(b) TERM. This Agreement shall remain in effect for a period of two (2)
years from the date of its effectiveness and shall continue in effect for
successive twelve-month periods provided that the members of the board of the
Trust specifically approve such continuance at least annually.
(c) TERMINATION. Either party can terminate this Agreement upon ninety
(90) day's prior written notice. Compensation due OFS and unpaid by the Trust
upon such termination shall be immediately due and payable upon, and
notwithstanding, such termination.
(d) REIMBURSEMENT OF OFS' EXPENSES. Should the Fund exercise its right
to terminate, all out-of-pocket expenses associated with the movement of records
and material will be borne by the Fund. Additionally, the Administrator reserves
the right to charge for any other reasonable costs expenses associated with such
termination.
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(e) SURVIVAL OF CERTAIN OBLIGATIONS. The obligations of Sections 4, 5,
8, and 9, and 10 shall survive any termination of this Agreement.
(f) FORCE MAJEURE. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable to
the other party for any damages resulting from such failure to perform or
otherwise from such causes.
14. MISCELLANEOUS
(a) AMENDMENTS. No provisions of this Agreement may be amended or
modified in any manner except by a written agreement properly authorized and
executed by both parties hereto.
(b) GOVERNING LAW. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of New
York.
(c) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
(d) COUNTERPARTS. The parties may execute this Agreement on any number
of counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) SEVERABILITY. If any part, term or provision of this Agreement is
held to be illegal, in conflict with any law or otherwise invalid, the remaining
portion or portions shall be considered severable and not be affected by such
determination, and the rights and obligations of the parties shall be construed
and enforced as if the Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
(f) HEADINGS. Section and paragraph headings in this Agreement are
included for convenience only and are not to be used to construe or interpret
this Agreement.
(g) NOTICES. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent by telex
or facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
TO THE TRUST: TO OFS:
Xxxxxxxx X. Xxxxx Xxxxx X. Xxxxxx
Co-Chairman & Vice President President
DCM Series Trust Orbitex Fund Service, Inc.
0 Xxxxx Xxxxxx 000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
(h) DISTINCTION OF FUNDS. Notwithstanding any other provision of this
Agreement, the parties agree that the assets and liabilities of each Fund of the
Trust are separate and distinct from the assets and liabilities of each other
Fund and that no Fund shall be liable or shall be charged for any debt,
obligation or liability of any other Fund, whether arising under this Agreement
or otherwise.
(i) CONSEQUENTIAL DAMAGES. Neither party to this Agreement shall be
liable to the other party for consequential damages under any provision of this
Agreement or for any act or failure to act hereunder.
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(j) NONLIABILITY OF AFFILIATES. No affiliated person (as that term is
defined in the 1940 Act), employee, agent, director, officer or manager of OFS
shall be liable at law or in equity for OFS' obligations under this Agreement.
(k) REPRESENTATION OF SIGNATORIES. Each of the undersigned expressly
warrants and represents that they have full power and authority to sign this
Agreement on behalf of the party indicated and that their signature will bind
the party indicated to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
DCM SERIES TRUST ORBITEX FUND SERVICE, INC.
By:__________________________
By:____________________________
Xxxxxxxx X. Xxxxx Xxxxx X. MeehanCo-Chairman &
President Vice President
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SCHEDULE A
(A) ADMINISTRATIVE SERVICE FEE:
For the services rendered by the Administrator in its capacity as
administrator, as specified in Paragraph 1. DUTIES OF THE ADMINISTRATOR., the
Fund shall pay the Administrator within ten (10) days after receipt of an
invoice from the Administrator at the beginning of each month, a fee equal to
the greater of:
CALCULATED FEE WILL BE BASED UPON PRIOR MONTH AVERAGE NET ASSETS:
(No prorating partial months)
|X| NOTE: Monthly minimum services fee per portfolio, exclusive of legal and
distribution costs, are as follows (based upon Average Net Assets):
Minimum Monthly l Fee - $3, 750
OR,
NET ASSET CHARGE:
>> 1/12th of 0.175% (17.5 basis points) of first $20 million of average net
assets of Fund for month; plus
>> 1/12th of 0.095% (9.5 basis points) of next $80 million of average net
assets of Fund for month; plus
>> 1/12th of 0.045% (4.5 basis points) of next $200 million of average net
assets of Fund for month; plus
>> 1/12th of 0.02% (2 basis points) of all average net assets of Fund for
month in excess of $300 million
(B) EXPENSES
The following expenses will be charged to the Fund as incurred by the
Administrator in connection with the performance of its duties to include but
are not limited to, the printing or filing of documents for the Fund, travel,
daily quotation fees, capital change information, telephone toll charges,
facsimile transmissions, supplies (related to Fund records), record storage,
postage and courier charges, pro-rata portion of SAS 70 review, cost of
preparing materials necessary for annual review of investment advisory agreement
( 15c Report) and NASDAQ insertion fee . The Administrator shall provide the
Fund with a monthly invoice of such expenses and the Fund shall reimburse the
Administrator within fifteen (15) days after receipt thereof.
(C) STATE REGISTRATION (BLUE SKY) FILING FEE
The fees enumerated in paragraph (a) above do not include the initial
state registration, renewal and maintenance of registrations (as detailed in
Paragraph 1(k) DUTIES OF THE ADMINISTRATOR). Each state registration requested
will be subject to the following fees:
Initial registration ............... $295.00
Registration renewal ............... $150.00
Sales reports (if required) ........ $ 25.00
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(D) SPECIAL REPORTS
All reports and /or analyses requested by the Fund, its auditors, legal
counsel, portfolio manager, or any regulatory agency having jurisdiction over
the Fund, that are not in the normal course of fund administrative activities as
specified Paragraph 1 DUTIES OF THE ADMINISTRATOR shall be subject to an
additional charge, agreed upon in advance, based upon the following rates:
Labor:
Senior staff - $150.00/hr.
Junior staff - $ 75.00/hr.
Computer time - $45.00/hr.
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