E X H I B I T 9
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THE WHITE ELK FUNDS
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Administration Agreement
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ADMINISTRATION AGREEMENT
Agreement dated as of February 12, 1998 by and between State Street
Bank and Trust Company, a Massachusetts trust company (the "Administrator"), and
The White Elk Funds (the "Trust").
WHEREAS, the Trust is registered as an open-end, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Trust desires to retain the Administrator to furnish
certain administrative services to the Trust, and the Administrator is willing
to furnish such services, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF ADMINISTRATOR
The Trust hereby appoints the Administrator to act as administrator
with respect to the Trust for purposes of providing certain administrative
services for the period and on the terms set forth in this Agreement. The
Administrator accepts such appointment and agrees to render the services stated
herein.
The Trust will initially consist of the portfolio(s) and/or class(es)
of shares (each an "Investment Fund") listed in Schedule A to this Agreement. In
the event that the Trust establishes one or more additional Investment Funds
with respect to which it wishes to retain the Administrator to act as
administrator hereunder, the Trust shall notify the Administrator in writing.
Upon written acceptance by the Administrator, such Investment Fund shall become
subject to the provisions of this Agreement to the same extent as the existing
Investment Funds, except to the extent that such provisions (including those
relating to the compensation and expenses payable by the Trust and its
Investment Funds) may be modified with respect to each additional Investment
Fund in writing by the Trust and the Administrator at the time of the addition
of the Investment Fund.
2. DELIVERY OF DOCUMENTS
The Trust will promptly deliver to the Administrator copies of each
of the following documents and all future amendments and supplements, if any:
(a) The Trust's Agreement and Declaration of Trust;
(b) The Trust's currently effective registration statement under
the Securities Act of 1933, as amended (the "1933 Act"), and the 1940
Act and the Trust's Prospectus(es) and Statement(s) of Additional
Information relating to all Investment Funds and all amendments and
supplements thereto as in effect from time to time;
(c) Certified copies of the resolutions of the Board of Trustees
of the Trust (the "Board") authorizing (1) the Trust to enter into
this Agreement and (2) certain individuals on behalf of the Trust to
(a) give instructions to the Administrator pursuant to this Agreement
and (b) sign checks and pay expenses;
(d) A copy of the investment advisory agreement between the Trust
and its investment adviser; and
(e) Such other certificates, documents or opinions which the
Administrator may, in its reasonable discretion, deem necessary or
appropriate in the proper performance of its duties.
3. REPRESENTATION AND WARRANTIES OF THE ADMINISTRATOR
The Administrator represents and warrants to the Trust that:
(a) It is a Massachusetts trust company, duly organized and
existing under the laws of The Commonwealth of Massachusetts;
(b) It has the corporate power and authority to carry on its
business in The Commonwealth of Massachusetts;
(c) All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
(d) No legal or administrative proceedings have been instituted
or threatened which would impair the Administrator's ability to
perform its duties and obligations under this Agreement; and
(e) Its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or
obligation of the Administrator or any law or regulation applicable
to it.
4. REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to the Administrator that:
(a) It is a business trust, duly organized, existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(b) It has the corporate power and authority under applicable
laws and by its charter and by-laws to enter into and perform this
Agreement;
(c) All requisite proceedings have been taken to authorize it to
enter into and perform this Agreement;
(d) It is an investment company properly registered under the
1940 Act;
(e) A registration statement under the 1933 Act and the 1940 Act
has been filed and will be effective and remain effective during the
term of this Agreement. The Trust also warrants to the Administrator
that as of the effective date of this Agreement, all necessary
filings under the securities laws of the states in which the Trust
offers or sells its shares have been made;
(f) No legal or administrative proceedings have been instituted
or threatened which would impair the Trust's ability to perform its
duties and obligations under this Agreement;
(g) Its entrance into this Agreement will not cause a material
breach or be in material conflict with any other agreement or
obligation of the Trust or any law or regulation applicable to it;
and
(h) As of the close of business on the date of this Agreement,
the Trust is authorized to issue shares of beneficial interest, and
it will initially offer shares, in the authorized amounts as set
forth in Schedule A to this Agreement:
5. ADMINISTRATION SERVICES
The Administrator shall provide the following services, in each case,
subject to the control, supervision and direction of the Trust and the review
and comment by the Trust's auditors and legal counsel and in accordance with
procedures which may be established from time to time between the Trust and the
Administrator:
(a) Oversee the determination and publication of the Trust's net
asset value in accordance with the Trust's policy as adopted from
time to time by the Board;
(b) Oversee the maintenance by the Trust's custodian of certain
books and records of the Trust as required under Rule 31a-1(b) of the
1940 Act;
(c) Prepare the Trust's federal, state and local income tax
returns for review by the Trust's independent accountants and filing
by the Trust's treasurer;
(d) Review calculation, submit for approval by officers of the
Trust and arrange for payment of the Trust's expenses;
(e) Prepare for review and approval by officers of the Trust
financial information for the Trust's semi-annual and annual reports,
proxy statements and other communications required or otherwise to be
sent to Trust shareholders, and arrange for the printing and
dissemination of such reports and communications to shareholders;
(f) Prepare for review by an officer of and legal counsel for the
Trust the Trust's periodic financial reports required to be filed
with the Securities and Exchange Commission ("SEC") on Form N-SAR and
financial information required by Form [N-A/N-2] and such other
reports, forms or filings as may be mutually agreed upon;
(g) Prepare reports relating to the business and affairs of the
Trust as may be mutually agreed upon and not otherwise prepared by
the Trust's investment adviser, custodian, legal counsel or
independent accountants;
(h) Make such reports and recommendations to the Board concerning
the performance of the independent accountants as the Board may
reasonably request;
(i) Make such reports and recommendations to the Board concerning
the performance and fees of the Trust's custodian and transfer and
dividend disbursing agent ("Transfer Agent") as the Board may
reasonably request or deems appropriate;
(j) Oversee and review calculations of fees paid to the Trust's
investment adviser, custodian and Transfer Agent;
(k) Consult with the Trust's officers, independent accountants,
legal counsel, custodian and Transfer Agent in establishing the
accounting policies of the Trust;
(l) Respond to, or refer to the Trust's officers or Transfer
Agent, shareholder inquiries relating to the Trust;
(m) Provide periodic testing of portfolios to assist the Trust's
investment adviser in complying with Internal Revenue Code mandatory
qualification requirements, the requirements of the 1940 Act and
Trust prospectus limitations as may be mutually agreed upon;
(n) Review and provide assistance on shareholder communications;
(o) Maintain general corporate calendar;
(p) Maintain copies of the Trust's charter and by-laws;
(q) File annual and semi-annual shareholder reports with the
appropriate regulatory agencies; review text of "President's letters"
to shareholders and "Management's Discussion of Trust Performance"
(which shall also be subject to review by the Trust's legal counsel);
(r) Organize, attend and prepare minutes of shareholder meetings;
(s) Provide consultation on regulatory matters relating to
portfolio management, Trust operations and any potential changes in
the Trust's investment policies, operations or structure; act as
liaison to legal counsel to the Trust and, where applicable, to legal
counsel to the Trust's independent Board members;
(t) Maintain continuing awareness of significant emerging
regulatory and legislative developments which may affect the Trust,
update the Board and the investment adviser on those developments and
provide related planning assistance where requested or appropriate;
(u) Develop or assist in developing guidelines and procedures to
improve overall compliance by the Trust and its various agents;
(v) Counsel and assist the Trust in the handling of routine
regulatory examinations and work closely with the Trust's legal
counsel in response to any non-routine regulatory matters;
Subject to review and comment by the Trust's legal counsel:
(w) Prepare and file with the SEC amendments to the Trust's
registration statement, including updating the Prospectus and
Statement of Additional Information, where applicable;
(x) Prepare and file with the SEC proxy statements; provide
consultation on proxy solicitation matters;
(y) Prepare agenda and background materials for Board meetings,
make presentations where appropriate, prepare minutes and follow-up
on matters raised at Board meetings; and
(z) Prepare and file with the SEC Rule 24f-2 notices.
(aa) Perform Blue Sky services pursuant to the specific
instructions of the Trust and as detailed in Schedule C to this
Agreement.
The Administrator shall provide the office facilities and the personnel required
by it to perform the services contemplated herein.
6. FEES; EXPENSES; EXPENSE REIMBURSEMENT
The Administrator shall receive from the Trust such compensation for
the Administrator's services provided pursuant to this Agreement as may be
agreed to from time to time in a written fee schedule approved by the parties
and initially set forth in Schedule B to this Agreement. The fees are accrued
daily and billed monthly and shall be due and payable upon receipt of the
invoice. Upon the termination of this Agreement before the end of any month, the
fee for the part of the month before such termination shall be prorated
according to the proportion which such part bears to the full monthly period and
shall be payable upon the date of termination of this Agreement. In addition,
the Trust shall reimburse the Administrator for its out-of-pocket costs incurred
in connection with this Agreement.
The Trust agrees promptly to reimburse the Administrator for any
equipment and supplies specially ordered by or for the Trust through the
Administrator and for any other expenses not contemplated by this Agreement that
the Administrator may incur on the Trust's behalf at the Trust's request or with
the Trust's consent.
The Trust will bear all expenses that are incurred in its operation
and not specifically assumed by the Administrator. Expenses to be borne by the
Trust, include, but are not limited to: organizational expenses; cost of
services of independent accountants and outside legal and tax counsel (including
such counsel's review of the Trust's registration statement, proxy materials,
federal and state tax qualification as a regulated investment company and other
reports and materials prepared by the Administrator under this Agreement); cost
of any services contracted for by the Trust directly from parties other than the
Administrator; cost of trading operations and brokerage fees, commissions and
transfer taxes in connection with the purchase and sale of securities for the
Trust; investment advisory fees; taxes, insurance premiums and other fees and
expenses applicable to its operation; costs incidental to any meetings of
shareholders including, but not limited to, legal and accounting fees, proxy
filing fees and the costs of preparation, printing and mailing of any proxy
materials; costs incidental to Board meetings, including fees and expenses of
Board members; the salary and expenses of any officer, director/trustee or
employee of the Trust; costs incidental to the preparation, printing and
distribution of the Trust's registration statements and any amendments thereto
and shareholder reports; cost of typesetting and printing of prospectuses; cost
of preparation and filing of the Trust's tax returns, Form N-1A or N-2 and Form
N-SAR, and all notices, registrations and amendments associated with applicable
federal and state tax and securities laws; all applicable registration fees and
filing fees required under federal and state securities laws; fidelity bond and
directors' and officers' liability insurance; and cost of independent pricing
services used in computing the Trust's net asset value.
The Administrator is authorized to and may employ or associate with
such person or persons as the Administrator may deem desirable to assist it in
performing its duties under this Agreement; provided, however, that the
compensation of such person or persons shall be paid by the Administrator and
that the Administrator shall be as fully responsible to the Trust for the acts
and omissions of any such person or persons as it is for its own acts and
omissions.
7. INSTRUCTIONS AND ADVICE
At any time, the Administrator may apply to any officer of the Trust
for instructions and may consult with its own legal counsel or outside counsel
for the Trust or the independent accountants for the Trust at the expense of the
Trust, with respect to any matter arising in connection with the services to be
performed by the Administrator under this Agreement. The Administrator shall not
be liable, and shall be indemnified by the Trust, for any action taken or
omitted by it in good faith in reliance upon any such instructions or advice or
upon any paper or document believed by it 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 person until receipt of written notice
thereof from the Trust. Nothing in this paragraph shall be construed as imposing
upon the Administrator any obligation to seek such instructions or advice, or to
act in accordance with such advice when received.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
The Administrator shall be responsible for the performance of only
such duties as are set forth in this Agreement and, except as otherwise provided
under Section 6, shall have no responsibility for the actions or activities of
any other party, including other service providers. The Administrator shall have
no liability for any error of judgment or mistake of law or for any loss or
damage resulting from the performance or nonperformance of its duties hereunder
unless solely caused by or resulting from the gross negligence or willful
misconduct of the Administrator, its officers or employees. The Administrator
shall not be liable for any special, indirect, incidental, or consequential
damages of any kind whatsoever (including, without limitation, attorneys' fees)
under any provision of this Agreement or for any such damages arising out of any
act or failure to act hereunder. In any event, the Administrator's liability
under this Agreement shall be limited to its total annual compensation earned
and fees paid hereunder during the preceding twelve months for any liability or
loss suffered by the Trust including, but not limited to, any liability relating
to qualification of the Trust as a regulated investment company or any liability
relating to the Trust's compliance with any federal or state tax or securities
statute, regulation or ruling.
The Administrator shall not be responsible or liable for any failure
or delay in performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its control,
including without limitation, work stoppage, power or other mechanical failure,
computer virus, natural disaster, governmental action or communication
disruption.
The Trust shall indemnify and hold the Administrator harmless from
all loss, cost, damage and expense, including reasonable fees and expenses for
counsel, incurred by the Administrator resulting from any claim, demand, action
or suit in connection with the Administrator's acceptance of this Agreement, any
action or omission by it in the performance of its duties hereunder, or as a
result of acting upon any instructions reasonably believed by it to have been
duly authorized by the Trust, provided that this indemnification shall not apply
to actions or omissions of the Administrator, its officers or employees in cases
of its or their own gross negligence or willful misconduct.
The indemnification contained herein shall survive the termination of
this Agreement.
9. CONFIDENTIALITY
The Administrator agrees that, except as otherwise required by law or
in connection with any required disclosure to a banking or other regulatory
authority, it will keep confidential all records and information in its
possession relating to the Trust or its shareholders or shareholder accounts and
will not disclose the same to any person except at the request or with the
written consent of the Trust.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND
REGULATIONS; RECORDS
The Trust assumes full responsibility for complying with all
securities, tax, commodities and other laws, rules and regulations applicable to
it.
In compliance with the requirements of Rule 31a-3 under the 1940 Act,
the Administrator agrees that all records which it maintains for the Trust shall
at all times remain the property of the Trust, shall be readily accessible
during normal business hours, and shall be promptly surrendered upon the
termination of the Agreement or otherwise on written request. The Administrator
further agrees that all records which it maintains for the Trust pursuant to
Rule 31a-1 under the 1940 Act will be preserved for the periods prescribed by
Rule 31a-2 under the 1940 Act unless any such records are earlier surrendered as
provided above. Records shall be surrendered in usable machine-readable form.
11. SERVICES NOT EXCLUSIVE
The services of the Administrator to the Trust are not to be deemed
exclusive, and the Administrator shall be free to render similar services to
others. The Administrator shall be deemed to be an independent contractor and
shall, unless otherwise expressly provided herein or authorized by the Trust
from time to time, have no authority to act or represent the Trust in any way or
otherwise be deemed an agent of the Trust.
12. TERM, TERMINATION AND AMENDMENT
This Agreement shall become effective on the date of its execution
and shall remain in full force and effect from the effective date and shall
automatically continue in full force and effect after such initial term unless
either party terminates this Agreement by written notice to the other party at
least sixty (60) days prior to the expiration of the initial term. Either party
may terminate this Agreement at any time after the initial term upon at least
sixty (60) days' prior written notice to the other party. Termination of this
Agreement with respect to any given Investment Fund shall in no way affect the
continued validity of this Agreement with respect to any other Investment Fund.
Upon termination of this Agreement, the Trust shall pay to the Administrator
such compensation and any reimbursable expenses as may be due under the terms
hereof as of the date of such termination, including reasonable out-of-pocket
expenses associated with such termination. This Agreement may be modified or
amended from time to time by mutual written agreement of the parties hereto.
13. NOTICES
Any notice or other communication authorized or required by this
Agreement to be given to either party shall be in writing and deemed to have
been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the following address (or such
other address as a party may specify by written notice to the other): if to the
Trust: The White Elk Funds, Attn: Xxxxxxx Xxxxxxx, fax: (000) 000-0000; if to
the Administrator: State Street Bank and Trust Company, 0000 Xxxxxxxx Xxxxx,
XXX-0, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Fund Administration Legal
Department, fax: 000-000-0000.
14. NON-ASSIGNABILITY
This Agreement shall not be assigned by either party hereto without
the prior consent in writing of the other party, except that the Administrator
may assign this Agreement to a successor of all or a substantial portion of its
business, or to a party controlling, controlled by or under common control with
the Administrator.
15. SUCCESSORS
This Agreement shall be binding on and shall inure to the benefit of
the Trust and the Administrator and their respective successors and permitted
assigns.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties
hereto with respect to the subject matter hereof and supersedes all previous
representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
17. WAIVER
The failure of a party to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver nor shall it
deprive such party of the right thereafter to insist upon strict adherence to
that term or any term of this Agreement. Any waiver must be in writing signed by
the waiving party.
18. SEVERABILITY
If any provision of this Agreement is invalid or unenforceable, the
balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any person or circumstance it shall nevertheless remain
applicable to all other persons and circumstances.
19. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
20. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and
amendments hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
all/each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below as of the date first written
above.
THE WHITE ELK FUNDS
By: /s/ XXXXXXX X. XXXXXX
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Name: XXXXXXX X. XXXXXX
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Title: PRESIDENT
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STATE STREET BANK AND TRUST COMPANY
By: /s/ XXXXXXXX X. XXXXXXX
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Name: XXXXXXXX X. XXXXXXX
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Title: SENIOR VICE PRESIDENT
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ADMINISTRATION AGREEMENT
THE WHITE ELK FUNDS
SCHEDULE A
LISTING OF INVESTMENT FUNDS AND AUTHORIZED SHARES
Investment Fund Authorized Shares
White Elk Large Cap Growth Fund
White Elk Mid Cap Growth Fund
White Elk Small Cap Growth Fund
White Elk Large Cap Value Fund
White Elk Mid Cap Value Fund
White Elk Small Cap Value Fund
White Elk Leveraged All Cap Fund
White Elk Global Equity Fund
White Elk Long-Term Bond Fund
White Elk Medium-Term Bond Fund
White Elk Money Market Fund
ADMINISTRATION AGREEMENT
THE WHITE ELK FUNDS
SCHEDULE B
FEES AND EXPENSES
ADMINISTRATION AGREEMENT
THE WHITE ELK FUNDS
SCHEDULE C
NOTICE FILING WITH
STATE SECURITIES ADMINISTRATORS
AT THE SPECIFIC DIRECTION OF THE TRUST, THE ADMINISTRATOR WILL
PREPARE REQUIRED DOCUMENTATION AND MAKE NOTICE FILINGS IN ACCORDANCE WITH THE
SECURITIES LAWS OF EACH JURISDICTION IN WHICH TRUST SHARES ARE TO BE OFFERED OR
SOLD PURSUANT TO INSTRUCTIONS GIVEN TO THE ADMINISTRATOR BY THE TRUST.
THE TRUST SHALL BE SOLELY RESPONSIBLE FOR THE DETERMINATION (I) OF
THOSE JURISDICTIONS IN WHICH NOTICE FILINGS ARE TO BE SUBMITTED AND (II) THE
NUMBER OF TRUST SHARES TO BE PERMITTED TO BE SOLD IN EACH SUCH JURISDICTION. IN
THE EVENT THAT THE ADMINISTRATOR BECOMES AWARE OF (A) THE SALE OF TRUST SHARES
IN A JURISDICTION IN WHICH NO NOTICE FILING HAS BEEN MADE OR (B) THE SALE OF
TRUST SHARES IN EXCESS OF THE NUMBER OF TRUST SHARES PERMITTED TO BE SOLD IN
SUCH JURISDICTION, THE ADMINISTRATOR SHALL REPORT SUCH INFORMATION TO THE TRUST,
AND IT SHALL BE THE TRUST'S RESPONSIBILITY TO DETERMINE APPROPRIATE CORRECTIVE
ACTION AND INSTRUCT THE ADMINISTRATOR WITH RESPECT THERETO.
The Blue Sky services shall consist of the following:
1. Filing of Trust's Initial Notice Filings, as directed by the
Trust;
2. Filing of Trust's renewals and amendments as required;
3. Filing of amendments to the Trust's registration statement where
required;
4. Filing Trust sales reports where required;
5. Payment at the expense of the Trust of all Trust Notice Filing
fees;
6. Filing the Prospectuses and Statements of Additional Information
and any amendments or supplements thereto where required;
7. Filing of annual reports and proxy statements where required; and
8. The performance of such additional services as the Administrator
and the Trust may agree upon in writing.
Unless otherwise specified in writing by the Administrator, Blue Sky
services by the Administrator shall not include determining the availability of
exemptions under a jurisdiction's blue sky law. Any such determination shall be
made by the Trust or its legal counsel. In connection with the services
described herein, the Trust shall issue in favor of the Administrator a power of
attorney to submit Notice Filings on behalf of the Trust, which power of
attorney shall be substantially in the form of Exhibit I attached hereto.
EXHIBIT I
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, as of February 12, 1998 that the White
Elk Funds with principal offices at 000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Trust") makes, constitutes, and appoints STATE STREET BANK AND TRUST
COMPANY (the "Administrator") with principal offices at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx its lawful attorney-in-fact for it to do as if it were
itself acting, the following:
1. REGISTRATION OF TRUST SHARES. The power to register shares of the
Trust in each jurisdiction in which Trust shares are offered or
sold and in connection therewith the power to prepare, execute,
and deliver and file any and all Trust applications, including
without limitation, applications to register shares, consents,
including consents to service of process, reports, including
without limitation, all periodic reports, claims for exemption,
or other documents and instruments now or hereafter required or
appropriate in the judgment of the Administrator in connection
with the registration of Trust shares.
2. AUTHORIZED SIGNERS. Pursuant to this Limited Power of Attorney,
individuals holding the titles of Officer, Blue Sky Manager, or
Senior Blue Sky Administrator at the Administrator shall have
authority to act on behalf of the Trust with respect to item 1
above.
The execution of this limited power of attorney shall be deemed
coupled with an interest and shall be revocable only upon receipt by the
Administrator of such termination of authority. Nothing herein shall be
construed to constitute the appointment of the Administrator as or otherwise
authorize the Administrator to act as an officer, director or employee of the
Trust.
IN WITNESS WHEREOF, the Trust has caused this Agreement to be
executed in its name and on its behalf by and through its duly authorized
officer, as of the date first written above.
THE WHITE ELK FUNDS
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: President
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