EXHIBIT 99(h)(ii)
ADMINISTRATION AGREEMENT
AGREEMENT made this 4th day of November, 2003, between New Covenant
Funds (the "Trust"), a Delaware business trust having its principal place of
business at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxxxxxxx, Xxxxxxx 00000, and
BISYS Fund Services Ohio, Inc. ("BISYS"), a Delaware corporation having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust desires that BISYS perform administration services
for the Trust and each investment portfolio of the Trust, as now in existence as
set forth on Schedule A, or as hereafter may be established from time to time
(individually referred to herein as the "Fund" and collectively as the "Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS and Trust wish to enter into this Agreement in order to
set forth the terms under which BISYS will perform the administration services
set forth herein for the Trust.
NOW, THEREFORE, in consideration of the covenants hereinafter
contained, Trust and BISYS hereby agree as follows:
1. Retention of BISYS
The Trust hereby retains BISYS to act as the administrator of the Trust
and to furnish the Trust and Funds with the management and administrative
services as set forth in Section 2 below. BISYS hereby accepts such appointment
to perform the duties set forth below.
BISYS 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 Trust in any way and shall not be deemed
an agent of the Trust.
BISYS may utilize third party vendors as agents in connection with its
services, and subject to the prior approval of the Board of Trustees of the
Trust, may appoint in writing other parties qualified to perform administration
services reasonably acceptable to the Trust (individually, a
"Sub-Administrator") to carry out some or all of its responsibilities as
administrator under this Agreement; provided, however, that such agents
(including any such Sub-Administrator) shall be agents of BISYS and not agents
of the Trust, and that BISYS shall be fully responsible for the acts of such
agents and shall not be relieved of any of its responsibilities hereunder by
their appointment.
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2. Administrative Services
BISYS shall perform or supervise the performance by others of
administrative services in connection with the operations of the Trust and
Funds, and, on behalf of the Trust, shall investigate, assist in the selection
of 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 Trust's and Funds' operations. BISYS shall provide the Board of Trustees of
the Trust (hereafter referred to as the "Board") with such reports regarding
investment performance as it may reasonably request but shall have no
responsibility for supervising the performance by any investment adviser or
sub-adviser of its responsibilities.
BISYS shall provide the Trust with all necessary office space,
equipment, personnel, compensation and facilities (including facilities for
shareholders' and Board of Trustees meetings) for handling the affairs of the
Trust and Funds and such other services as BISYS shall, from time to time,
determine to be necessary to perform its obligations under this Agreement. In
addition, at the request of the Board, BISYS shall make reports to the Board
concerning the performance of its obligations hereunder.
Without limiting the generality of the foregoing, BISYS shall:
(a) calculate contractual Trust expenses, including preparing the
budget with expense forecasts, and control all disbursements
for the Trust, and as appropriate, compute the Trust's yields,
total return, expense ratios, portfolio turnover rate and, if
required, portfolio average dollar-weighted maturity;
(b) provide information and assistance to counsel to the Trust in
preparing (i) the annual update to the Trust's registration
statement on Form N-1 A, (ii) other amendments to the Trust's
registration statement and supplements to its Prospectus and
Statement of Additional Information, and (iii) Notices of
Annual or Special Meetings of shareholders of the Trust and
proxy materials relating thereto, and file any of the
foregoing with the Securities and Exchange Commission (the
"SEC") upon the request of the Trust or counsel to the Trust;
(c) prepare such reports, applications and documents (including
reports regarding the sale and redemption of shares of
beneficial interest in the Trust as may be required in order
to comply with Federal and state securities laws) as may be
necessary or desirable to register the shares of beneficial
interest in the Trust ("Shares") with state securities
authorities, monitor the sale of Shares for compliance with
state securities laws, and file with the appropriate state
securities authorities the registration statements and reports
for the Trust and the Shares and all amendments thereto, as
may be necessary or convenient to register and keep effective
the registration of the Trust and the Shares with state
securities authorities to enable the Trust to make a
continuous offering of its Shares;
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(d) coordinate and prepare, with the assistance of the Funds'
investment adviser and officers, drafts of communications to
shareholders of record of the Funds ("Shareholders"),
including the annual report to Shareholders; prepare the
drafts of the semi-annual report for each of the Funds; and
file the certified final versions thereof on Form N-CSR, and
file all required notices pursuant to Rule 24f-2;
(e) coordinate the solicitation and tabulation of proxies in
connection with the annual meeting of Shareholders each year,
if one is held;
(f) administer contracts on behalf of the Trust with, among
others, the Trust's investment adviser, distributor,
custodian, transfer agent and fund accountant;
(g) supervise the Trust's transfer agent with respect to the
payment of dividends and other distributions to Shareholders;
(h) calculate performance data of the Funds for dissemination to
up to six (6) information services covering the investment
company industry;
(i) coordinate and supervise the preparation and filing of the
Trust's tax returns;
(j) assist with the layout and printing of prospectuses and assist
with and coordinate layout and printing of the Funds'
semi-annual and annual reports to Shareholders, prospectuses,
prospectus supplements, and proxy statements;
(k) assist with the design, development, and operation of the
Funds, including new classes, investment objectives, policies
and structure;
(1) make available appropriate individuals to serve as officers of
the Trust, upon designation as such by the Board, to serve in
ministerial capacities related to services provided by BISYS
as determined by the Board, or to serve in executive
capacities subject to the provisions of Schedule B
(Supplemental Service Provisions) and the BISYS Policies
referred to therein;
(m) advise the Trust and the Board on matters concerning the
Trust, the Funds and their affairs;
(n) obtain, maintain and file fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust
at the expense of the Trust and Funds in accordance with the
requirements of Rules 17g-1 and 17d-1(7) under the Investment
Company Act of 1940, as amended (the "1940 Act"), to the
extent such bonds and policies are approved by the Board;
(o) monitor and advise the Trust and its Funds on their regulated
investment company status under the Internal Revenue Code of
1986, as amended;
(p) perform necessary administrative services and functions of the
Trust and each Fund to the extent administrative services and
functions are not provided to the Trust or such Fund pursuant
to the Trust's or such Fund's
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investment advisory agreement, distribution agreement,
custodian agreement, transfer agent agreement or fund
accounting agreement;
(q) maintain corporate records on behalf of the Trust, including,
but not limited to, minute books, Declaration of Trust and
By-Laws;
(r) furnish advice and recommendations with respect to other
aspects of the business and affairs of the Funds as the Trust
and BISYS shall determine desirable;
(s) assist in developing compliance procedures for each Fund, and
provide compliance monitoring services incorporating certain
of those procedures, which will include, among other matters,
compliance with each Fund's investment objective, defined
investment policies, restrictions, and tax diversification,
distribution and income requirements, as are determinable
based upon the Fund's accounting records;
(t) monitor services provide under Shareholder Service Plans
adopted by the Board and financial institutions that serve, or
propose to serve, as shareholder services agents thereunder
("Shareholder Service Agents"); coordinate the services to be
rendered by Shareholder Service Agents pursuant to Shareholder
Service Agreements under Shareholder Service Plans, and review
the qualifications of Shareholder Service Agents to serve as
such under the relevant Shareholder Service Plan; coordinate
and assist in the Trust's execution and delivery of
Shareholder Service Agreements; report to the Board regarding
amounts paid under Shareholder Service Agreements and the
nature of Services provided by the Shareholder Service Agents
thereunder; and maintain appropriate records in connection
with the foregoing;
(u) provide assistance and guidance to the Trust with respect to
matters governed by or related to regulatory requirements and
developments including: monitoring regulatory and legislative
developments which may effect the Trust, and assisting in
strategic planning in response thereto; assisting the Trust in
responding to and providing documents for routine regulatory
examinations or investigations; and working closely with
counsel to the Trust in response to such routine or
non-routine regulatory matter; and
(v) assist the Trust in preparing for and administering Board
meetings by (i) coordinating Board book production and
distribution, (ii) subject to review and approval by the Trust
and its counsel, preparing Board agendas and minutes, (iii)
preparing the relevant sections of the Board materials
pertaining to the responsibilities of BISYS, (iv) assisting
and coordinating special materials related to annual contract
approvals and approval of rule I 2b-1 plans and related
matters, (v) provide appropriate personnel to attend Board
meetings and record the minutes of such meetings, and produce
and distribute materials for Board meetings, including
relevant sections of the Board materials pertaining to the
responsibilities of BISYS,
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and (vi) performing such other Board meeting functions as
agreed by the parties.
BISYS shall perform such other services for the Trust 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 Funds;
preparing an annual list of Shareholders; and mailing notices of Shareholders'
meetings, proxies and proxy statements, for all of which the Trust will pay such
fees as may be mutually agreed upon, including BISYS's out-of-pocket expenses.
3. Allocation of Charges and Expenses
(a) The Administrator. BISYS shall furnish at its own expense the
executive, supervisory and clerical personnel necessary to
perform its obligations under this Agreement. BISYS 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 Trust and Trustees of the Trust who are affiliated
persons of BISYS or any affiliated corporation of BISYS;
provided, however, that unless otherwise specifically
provided, BISYS shall not be obligated to pay the compensation
of any employee of the Trust retained by the Board to perform
services on behalf of the Trust.
(b) The Trust. The Trust assumes and shall pay or cause to be paid
all other expenses of the Trust 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 (and a fee of $8 per check
in connection with the payment thereof), fees and
out-of-pocket expenses of Trustees who are not affiliated
persons of BISYS or any affiliated corporation of BISYS (fees
for other "interested Trustees" may be paid by parties other
than the Trust), insurance, interest, brokerage costs,
litigation and other extraordinary or nonrecurring expenses,
and all fees and charges of investment advisers.
4. Compensation of the Administrator
(a) Administration Fee. For the services to be rendered, the
facilities furnished and the expenses assumed by BISYS
pursuant to this Agreement, the Trust shall pay monthly to
BISYS compensation at an annual rate of 0.02% (two basis
points) of the average daily net assets of the Trust; provided
that the administration fees are subject to a minimum
aggregate fee per annum of $45,000 multiplied by the total
number of Funds. In addition to the foregoing, the Trust shall
also reimburse BISYS
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for all of its reasonable out-of-pocket expenses, including,
but not limited to, travel and lodging expenses incurred by
officers and employees of BISYS in connection with attendance
at (i) Board meetings and (ii) any other meetings for which
such attendance is requested or agreed upon by the parties.
If this Agreement becomes effective subsequent to the first
day of a month or terminates in accordance with its terms
before the last day of a month, BISYS'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 BISYS'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.
5. Standard of Care; Uncontrollable Events; Limitation of Liability
BISYS shall use reasonable professional diligence to ensure the
accuracy of all services performed under this Agreement, but shall not be liable
to the Trust for any action taken or omitted by BISYS in the absence of bad
faith, willful misfeasance, negligence or reckless disregard by it of its
obligations and duties. The duties of BISYS shall be confined to those expressly
set forth herein, and no implied duties are assumed by or may be asserted
against BISYS hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Trust's reasonable request, BISYS shall provide supplemental information
concerning the aspects of its disaster recovery and business continuity plan
that are relevant to the services provided hereunder. Notwithstanding the
foregoing or any other provision of this Agreement, BISYS assumes no
responsibility hereunder, and shall not be liable for, any damage, loss of data,
delay or any other loss whatsoever caused by events beyond its reasonable
control. Events beyond BISYS' reasonable control include, without limitation,
force majeure events. Force majeure events include natural disasters, actions or
decrees of governmental bodies, and communication lines failures that are not
the fault of either party. In the event of force majeure, computer or other
equipment failures or other events beyond its reasonable control, BISYS shall
follow applicable procedures in its disaster recovery and business continuity
plan and use all commercially reasonable efforts to minimize any service
interruption.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES
WERE FORESEEABLE OR WHETHER EITHER
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PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Activities of the Administrator
The services of BISYS rendered to the Trust are not to be deemed to be
exclusive. BISYS is free to render such services to others and to have other
businesses and interests. It is understood that Trustees, officers, employees
and Shareholders of the Trust are or may be or become interested in BISYS, as
officers, employees or otherwise and that partners, officers and employees of
BISYS and its counsel are or may be or become similarly interested in the Trust,
and that BISYS may be or become interested in the Trust as a Shareholder or
otherwise.
7. Duration of this Agreement
This Agreement shall become effective upon the conversion of the
Trust's financial accounting data to BISYS' systems, on or about April 1, 2004
(or such other date as may be mutually agreed upon by the parties) (the
"Effective Date").
This Agreement shall continue in effect from the Effective Date until
March 31, 2007 (the "Initial Term"). Thereafter, unless otherwise terminated as
provided herein, this Agreement shall be renewed automatically for successive
one year periods ("Rollover Periods"). This Agreement may be terminated only (i)
by provision of a notice of non-renewal in the manner set forth below, (ii) by
mutual agreement of the parties or (iii) for "cause," as defined below, upon the
provision of sixty (60) days advance written notice by the party alleging cause.
Written notice of non-renewal must be provided at least ninety (90) days prior
to the end of the Initial Term or any Rollover Period, as the case may be.
For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty (30) days
following written notice of such breach from the non-breaching party; (b) a
final, unappealable judicial, regulatory or administrative ruling or order in
which the party to be terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; or (c) financial difficulties on the
part of the party to be terminated which are evidenced by the authorization or
commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the rights of
creditors. BISYS shall not terminate this Agreement pursuant to clause (a) above
based solely upon the Trust's failure to pay an amount to BISYS which is the
subject of a good faith dispute, if (i) the Trust is attempting in good faith to
resolve such dispute with as much expediency as may be possible under the
circumstances, and (ii) the Trust continues to perform its obligations hereunder
in all other material respects (including paying all fees and expenses not
subject to reasonable dispute hereunder).
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Notwithstanding the foregoing, following any such termination, in the
event that BISYS in fact continues to perform any one or more of the services
contemplated by this Agreement with the consent of the Trust, the provisions of
this Agreement, including without limitation the provisions dealing with
indemnification, shall continue in full force and effect. Fees and out-of-pocket
expenses incurred by BISYS but unpaid by the Trust upon such termination shall
be immediately due and payable upon and notwithstanding such termination. BISYS
shall be entitled to collect from the Trust, in addition to the fees and
disbursements provided by Section 4 hereof, the amount of all of BISYS' cash
disbursements in connection with BISYS' activities in effecting such
termination, including without limitation, the delivery to the Trust and/or its
distributor or investment adviser and/or other parties of the Trust's property,
records, instruments and documents.
If, for any reason other than (i) non-renewal, (ii) mutual agreement of
the parties or (iii) "cause" for termination of BISYS hereunder, BISYS' services
are terminated hereunder, BISYS is replaced as administrator, or if a third
party is added to perform all or a part of the services provided by BISYS under
this Agreement (excluding any Sub-Administrator appointed as provided in Section
8 hereof), then the Trust shall make a one-time cash payment, in consideration
of the fee structure and services to be provided under this Agreement, and not
as a penalty, to BISYS equal to the balance that would be due BISYS for its
services hereunder during (a) the next twelve (12) months or (b) if less than
twelve (12), the number of months remaining in the then-current term of this
Agreement, assuming for purposes of the calculation of the one-time payment that
the fees that would be earned by BISYS for each month shall be based upon the
average net asset values of the Trust and fees payable to BISYS monthly during
the twelve (12) months prior to the date that services terminate, BISYS is
replaced or a third party is added.
In the event the Trust or any Fund is merged into another legal entity
in part or in whole pursuant to any form of business reorganization or is
liquidated in part or in whole prior to the expiration of the then-current term
of this Agreement, the parties acknowledge and agree that the liquidated damages
provision set forth above shall be applicable in those instances in which BISYS
is not retained to provide administration services consistent with this
Agreement, including the level of assets subject to such services. The one-time
cash payment referenced above shall be due and payable on the day prior to the
first day in which services are terminated, BISYS is replaced or a third party
is added.
The parties further acknowledge and agree that, in the event services
are terminated, BISYS is replaced, or a third party is added, as set forth
above, (i) a determination of actual damages incurred by BISYS would be
extremely difficult, and (11) the liquidated damages provision contained herein
is intended to adequately compensate BISYS for damages incurred and is not
intended to constitute any form of penalty.
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8. Assignment
This Agreement shall not be assignable by either party without the
written consent of the other party. In the case of BISYS, an "assignment" shall
be deemed to include a change in actual control of BISYS or a merger,
consolidation, sale or other disposition of all or a substantial part of the
assets of BISYS to the extent a change in actual control would result therefrom.
The foregoing shall not limit or in any way affect BISYS' right to use agents or
appoint a Sub-Transfer Agent to the extent provided in Section 1 hereof. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
9. Indemnification
The Trust agrees to indemnify and hold harmless BISYS, its employees,
agents, directors, officers and nominees from and against any and all claims,
demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses
(including reasonable investigation expenses) of every nature and character
(collectively, "Losses") arising out of or in any way relating to BISYS' actions
taken 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 BISYS by the Trust, the
investment adviser, fund accountant, transfer agent or custodian thereof;
provided that this indemnification shall not apply to actions or omissions of
BISYS in cases of its own bad faith, willful misfeasance, negligence or reckless
disregard by it of its obligations and duties.
BISYS shall indemnify, defend, and hold the Trust harmless from and
against any and all Losses resulting directly and proximately from BISYS'
willful misfeasance, bad faith or negligence in the performance of its duties,
or by reason of reckless disregard of its obligations and duties hereunder.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited, provided that any such advanced expenses shall be
reimbursed by the indemnified party if an ultimate determination is made that
indemnification is not merited under the circumstances. If in any case a party
may be asked to indemnify or hold the other party harmless, the indemnifying
party shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnified party
will use all reasonable care to notify the indemnifying party promptly
concerning any situation which presents or appears likely to present the
probability of such a claim for indemnification against the indemnifying party,
but failure to do so in good faith shall not affect the rights hereunder except
to the extent the indemnifying party is materially prejudiced thereby. As to any
matter eligible for indemnification, an indemnified party shall act reasonably
and in accordance with good faith business judgment and shall not effect any
settlement or confess judgment without the consent of the indemnifying party,
which consent shall not be unreasonably withheld or delayed.
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The indemnifying party shall be entitled to participate at its own
expense or, if-it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the indemnified
party, whose approval shall not be unreasonably withheld. In the event that the
indemnifying party elects to assume the defense of any suit and retain counsel,
the indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
10. Certain Records
BISYS 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 3 la-1 and 31a-2 under the 1940 Act which are prepared or
maintained by BISYS on behalf of the Trust shall be prepared and maintained at
the expense of BISYS, but shall be the property of the Trust and will be
surrendered promptly to the Trust on request, and made available for inspection
by the Trust or by the Securities and Exchange Commission (the "Commission") at
reasonable times.
BISYS may at its option at any time, and shall promptly upon the
Trust's demand, turn over to the Trust and cease to retain BISYS' files, records
and documents created and maintained by BISYS pursuant to this Agreement which
are no longer needed by BISYS in the performance of its services or for its
legal protection. If not so turned over to the Trust, such documents and records
shall be retained by BISYS for six years from the year of creation. At the end
of such six-year period, such records and documents shall be turned over to the
Trust unless the Trust authorizes in writing the destruction of such records and
documents.
In case of any request or demand for the inspection of such records by
another party, BISYS shall notify the Trust and follow the Trust's instructions
as to permitting or refusing such inspection; provided that BISYS may exhibit
such records in any case where (i) disclosure is required by law, (ii) BISYS is
advised by counsel that it may incur liability for failure to make a disclosure,
(iii) BISYS is requested to divulge such information by duly-constituted
authorities or court process, or (iv) BISYS is requested to make a disclosure by
the Trust. BISYS shall provide the Trust with reasonable advance notice of
disclosure pursuant to items (i) - (iii) of the previous sentence, to the extent
reasonably practicable.
11. Insurance
BISYS shall maintain a fidelity bond covering larceny and embezzlement
and an insurance policy with respect to errors and omissions coverage in amounts
that are appropriate in light of its duties and responsibilities hereunder. Upon
the request of the Trust, BISYS shall provide evidence that coverage is in
place. BISYS shall notify the
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Trust should its insurance coverage with respect to professional liability or
errors and omissions coverage be canceled. Such notification shall include the
date of cancellation and the reasons therefore. BISYS shall notify the Trust of
any material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Trust should the total outstanding claims made by BISYS under its insurance
coverage materially impair, or threaten to materially impair, the adequacy of
its coverage.
12. Legal Advice; Reliance on Prospectus and Instructions
BISYS may apply to the Trust at any time for instructions and may
consult with counsel for the Trust and with accountants and other experts with
respect to any matter arising in connection with BISYS' duties, and BISYS shall
not be liable nor accountable for any 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. BISYS shall notify the Trust at any time BISYS
believes that it is in need of the advice of counsel (other than counsel in the
regular employ of BISYS or any affiliated companies) with regard to BISYS'
responsibilities and duties pursuant to this Agreement. After so notifying the
Trust, BISYS, at its discretion, shall be entitled to seek, receive and act upon
advice of legal counsel of its choosing, such advice to be at the expense of the
Trust unless relating to a matter involving BISYS' willful misfeasance, bad
faith, negligence or reckless disregard of BISYS' responsibilities and duties.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Trust relating to the relevant Funds to the extent that such
services are described therein, as well as the minutes of Board meetings (if
applicable) and other records of the Trust unless BISYS receives written
instructions to the contrary in a timely manner from the Trust.
Also, BISYS 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 Trust until
receipt of written notice thereof from the Trust or other actual notice.
13. Information to be Furnished by the Trust.
The Trust has furnished to BISYS copies of the following documents, as
amended and current as of the date hereof:
(a) The Declaration of Trust of the Trust and of any amendments
thereto.
(b) The Trusts' Bylaws and any amendments thereto.
(d) A list of all the officers of the Trust together with specimen
signatures of those officers who are authorized to instruct BISYS in any
particular matters or all matters.
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(e) The Prospectus and Statement of Additional Information for each
Fund.
14. Information to be Furnished by BISYS.
BISYS will furnish to the Trust copies of the following documents, as
amended and current as of the date hereof:
(a) BISYS' Articles of Incorporation;
(b) BISYS' By-laws and any amendments thereto; and
(c) The most recent independent accountant's report covering
internal controls related to BISYS's fund accounting
responsibilities and transfer agency operations, as filed with
the Securities and Exchange Commission ("SEC") pursuant to
Rule 17Ad-13 under the Securities Exchange Act of 0000 (xxx
"Xxxxxxxx Xxx").
To the knowledge of BISYS, there is currently no regulatory enforcement
action pending or contemplated against BISYS.
15. Amendments to Documents.
The Trust shall furnish BISYS with actual notice of any amendments to,
or changes in, any of the items referred to in Article 13 hereof, and arrange to
provide written copies of any such amendments forthwith upon such amendments or
changes becoming effective. In addition, the Trust agrees that no amendments
will be made to its Prospectuses or Statements of Additional Information which
might have the effect of changing the procedures employed by BISYS in providing
the services agreed to hereunder or which amendment might affect the duties of
BISYS hereunder unless the Trust first obtains BISYS' approval of such
amendments or changes.
16. Reliance on Amendments.
BISYS may rely on any amendments to or changes in any of the documents
and other items to be provided by the Trust pursuant to Sections 13 and 15 of
this Agreement and, subject to the provisions of Section 2, 5 and 6 hereof, the
Trust hereby indemnifies and holds harmless BISYS from and against any and all
claims, demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every nature and character which may
result from actions or omissions on the part of BISYS in reasonable reliance
upon such amendments and/or changes. Although BISYS is authorized to rely on the
above-mentioned amendments to and changes in the documents and other items to be
provided pursuant to Sections 13 and 15 hereof, in the event the same relate to
services provided by BISYS hereunder, BISYS shall have no liability for failure
to comply with or take any action in conformity with such amendments or changes
unless the Trust first obtains BISYS' consent to and approval of the specific
amendments or changes.
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17. Notice
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, to 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxxxxxxx, Xxxxxxx 00000; Attn: President; and if to BISYS, at 0000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000; Attn: President, or at such other address as such
party may from time to time specify in writing to the other party pursuant to
this Section.
18. Governing Law and Matters Relating to the Trust as a Delaware
Statutory Trust.
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. It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but shall bind only the trust
property of the Trust. 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 Trust, 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 them personally, but shall bind only the trust property of the
Trust as provided in the Trust's Declaration of Trust.
19. Representations and Warranties
The Trust represents and warrants to 'BISYS that this Agreement has
been duly authorized by the Trust and, when executed and delivered by the Trust,
will constitute a legal, valid and binding obligation of the Trust, enforceable
against the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
BISYS represents and warrants that: (a) the various procedures and
systems which BISYS has implemented with regard to safekeeping from loss or
damage attributable to fire, theft or any other cause of the blank checks,
records, and other data of the Trust and BISYS' records, data, equipment,
facilities and other property used in the performance of its obligations
hereunder are adequate and that it will make such changes therein from time to
time as are reasonably required for the secure performance of its obligations
hereunder; and (b) this Agreement has been duly authorized by BISYS and, when
executed and delivered by BISYS, will constitute a legal, valid and binding
obligation of BISYS, enforceable against BISYS in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the right and remedies of creditors and secured
parties.
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EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
20. Privacy
Nonpublic personal financial information relating to consumers or
customers of the Trust provided by, or at the direction of the Trust to BISYS,
or collected or retained by BISYS in the course of performing its duties shall
be considered confidential information. BISYS shall not give, sell or in any way
transfer such confidential information to any person or entity, other than
affiliates of BISYS except at the direction of the Trust or as required or
permitted by law. BISYS represents, warrants and agrees that it has in place and
will maintain physical, electronic and procedural safeguards reasonably designed
to protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of records and information relating to consumers
or customers of the Trust. The Trust represents to BISYS that it has adopted a
Statement of its privacy policies and practices as required by the Commission's
Regulation S-P and agrees to provide BISYS with a copy of that statement
annually.
21. Miscellaneous
(a) Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or
interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the
parties hereto as to the subject matter covered by this
Agreement, and supercedes all prior negotiations,
understandings and agreements bearing upon the subject matter
covered herein[, including, without limitation, the 199_
Agreement].
(c) This Agreement may be executed in counterparts, each of which
shall be an original but all of which, taken together, shall
constitute one and the same agreement.
(d) No amendment to this Agreement shall be valid unless made in
writing and executed by both parties hereto. The parties
hereto may amend such procedures as may be set forth herein by
written agreement as may be appropriate or practical under the
circumstances, and BISYS may conclusively assume that any
special procedure which has been approved by an executive
officer of the Trust (other than an officer or employee of
BISYS) does not conflict with or violate any requirements of
the Trust's Declaration of Trust, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any
regulatory body.
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(e) 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 Commission.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
NEW COVENANT FUNDS
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name:
Title:
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
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SCHEDULE A
ADMINISTRATION AGREEMENT
BETWEEN
NEW COVENANT FUNDS
AND
BISYS FUND SERVICES OHIO, INC.
DATED NOVEMBER 4TH, 2003
FUNDS
NEW COVENANT GROWTH FUND
NEW COVENANT INCOME FUND
NEW COVENANT BALANCED GROWTH FUND
NEW COVENANT BALANCED INCOME FUND
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SCHEDULE B
ADMINISTRATION AGREEMENT
BETWEEN
NEW COVENANT FUNDS
AND
BISYS FUND SERVICES OHIO, INC.
DATED NOVEMBER 4TH, 2003
SUPPLEMENTAL SERVICE PROVISIONS
To assist the Trust in connection with its obligations under Sections
302 and 906 of the Sarbanes Oxley Act of 2002 and Rule 30a-2 under the 1940 Act
(collectively, with such other related regulatory provisions applicable to the
Trust, "Xxxxxxxx-Xxxxx"), BISYS will internally establish and maintain controls
and procedures ("BISYS internal controls") designed to ensure that information
recorded, processed, summarized, or reported by BISYS and its affiliates on
behalf of the Trust and included in financial information certified by Trust
officers ("Certifying Officers") on Form N-CSR ("Reports") is (a) recorded,
processed, summarized, and reported by BISYS within the time periods specified
in the Commission's rules and forms and the corresponding disclosure controls
and procedures of the Funds ("Fund DCPs"), and (b) accumulated and communicated
to the relevant Certifying Officers consistent with the Fund DCPs.
If requested by Certifying Officers with respect to a fiscal period
during which BISYS serves or served as financial administrator, BISYS will
provide a sub-certification consistent with the requirements of Xxxxxxxx-Xxxxx
pertaining to BISYS' services. In rendering such sub-certifications concerning
Fund Reports, BISYS may (a) limit its representations to information prepared,
processed and reported by BISYS; (b) rely upon and assume the accuracy of the
information provided by officers and other authorized agents of the Funds,
including any other service providers to the Funds (other than BISYS and its
affiliates) and compliance by such officers and agents with the Fund DCPs,
including but not limited to, each Fund's investment adviser(s) and custodian;
and (c) assume that the Trust has selected the appropriate accounting policies
for the Funds.
The Trust shall assist and cooperate with BISYS (and shall cause its
officers, investment advisers and other service providers to assist and
cooperate with BISYS) to facilitate the delivery of information requested by
BISYS in connection with the preparation of the Fund's Form N-CSR, including
Fund financial statements, so that BISYS may submit a draft Report to the Funds'
Disclosure Controls and Procedures Committee ("Fund DCP Committee") at least ten
(10) days prior to the date the relevant Report is to be filed. The relevant
Certifying Officers of the Trust shall be deemed to
17
constitute the Fund DCP Committee in cases in which no other Fund DCP Committee
has been designated or is operative. In connection with its review and
evaluations, and with the assistance of BISYS, the Fund DCP Committee shall
establish a schedule to ensure that all required disclosures in Form N-CSR and
in the financial statements for the Fund are identified and prepared in a
timeframe sufficient to allow review by the Fund DCP Committee. At the request
of the Trust or its Certifying Officers, BISYS shall provide reasonable
administrative assistance to the Trust in connection with obtaining service
provider sub-certifications and SAS-70 reports on internal controls, and in
preparing summaries of issues raised in such documents.
The Trust recognizes its obligation to comply with Xxxxxxxx-Xxxxx.
Without limitation of the foregoing, the Trust shall maintain responsibility
for, and shall support and facilitate the role of each Certifying Officer and
the Fund DCP Committee in, designing and maintaining the Fund DCPs in accordance
with applicable laws, including (a) ensuring that the Fund DCP Committee and/or
Certifying Officers obtain and review sub-certifications and reports on internal
controls from the Fund's investment adviser(s) and other service providers, if
any, sufficiently in advance of the date upon which the relevant financial
statements must be finalized by BISYS (in order to print, distribute and/or file
the same), and (b) evaluating the effectiveness of the design and operation of
the Fund DCP, with (at the Trust's election) the participation of the Certifying
Officers, within the requisite timeframe prior to the filing of each Report.
The Trust agrees and acknowledges that BISYS Policies are applicable to
the service of any BISYS employee as a Certifying Officer of the Trust (an
"Employee/Executive Officer"), and that to the extent this service is rendered
by BISYS, it is limited, in each case, to providing an Employee/Executive
Officer who, in the exercise of his or her duties to the Trust, shall act in
good faith and in a manner reasonably believed by him or her to be in the best
interests of the Trust. BISYS shall select, and may replace, the specific
employee that it makes available to serve in the designated capacity as an
Employee/Executive Officer, in BISYS' reasonable discretion, taking into account
such person's responsibilities concerning, and familiarity with, the Trust's
operations.
BISYS' provision of each Employee/Executive Officer is also subject to,
and conditioned upon, the following:
(a) The Fund DCPs shall contain (or the Trust and BISYS shall otherwise
establish) mutually agreeable procedures governing the certification process,
and the parties shall comply with such procedures in all material respects.
Among other things, the procedures shall provide as follows:
(i) The Trust shall establish and maintain a Fund DCP
Committee _comprised of persons including (at a
minimum) the Trust's Principal Executive Officer and
Chief Financial Officer and such other individuals as
may be reasonably necessary or appropriate for the
Fund DCP Committee to ensure the cooperation of, and
to oversee, each of the Trust's agents that records,
processes, summarizes, or reports information
contained in Fund Reports (or
18
other information from which such information is
derived), including the investment adviser and
custodian (each, a "Service Provider"). In connection
therewith, the Fund DCP Committee shall assist the
Certifying Officers by requiring that
sub-certifications acceptable to the Certifying
Officers be provided by Service Providers.
(ii) The Fund DCP Committee shall (i) meet within 10 days
before the filing date of each Report to review the
accuracy and completeness of the relevant Report and
(ii) record its considerations and conclusions in a
written memorandum sufficient to support conclusions
pertaining to Fund DCPs as required by Item 9 of Form
N-CSR. In conducting its review and evaluations, the
Fund DCP Committee shall:
A. establish a schedule to ensure that all
required disclosures in Form N-CSR,
including the financial statements, for the
Fund are identified and prepared in a
timeframe sufficient to allow review;
B. review SAS 70 reports pertaining to Service
Providers, if applicable, or in the absence
of any such reports, consider the adequacy
of a sub-certification of the Service
Provider. In cases where the SAS 70 report
is dated more than 90 days prior to the
issuance of a Report, the DCP Committee
shall request a written representation from
the Service Provider regarding the continued
application and effectiveness of internal
controls described in the report, or
descriptions of any changes in internal
control structure, as of the date of the
bring-down certification;
C. consider whether there are any significant
deficiencies in the design or operation of
the Fund DCPs that could adversely affect a
Fund's ability to record, process,
summarize, and report financial data, and in
the event that any such deficiencies are
identified, disclose them to the Fund's
Certifying Officers, the Fund's audit
committee and its auditors;
D. consider whether, to the knowledge of each
member of the Fund DCP Committee, there has
been or may have been any fraud, whether or
not material, and in the event that any such
occurrence is identified, ensure that this
has been disclosed to the Certifying
Officers (collectively, the "Executive
Officers") and the Qualified
Legal/Compliance Committee, so that the
Executive Officers and/or such Committee may
inform the Fund's audit committee and its
auditors; and
19
E. determine whether there were significant
changes in internal controls or in other
factors that could significantly affect
internal controls subsequent to the date of
the most recent evaluation of internal
controls, including any corrective actions
with regard to significant deficiencies and
material weaknesses, and if there were any,
take all steps necessary so that such
changes and corrective actions are reflected
in the Report.
(f) The Trust's governing documents (such as its Agreement and
Declaration of Trust and By-Laws) and/or resolutions of its
Board shall contain mandatory indemnification provisions that
are applicable to each Employee/Executive Officer, and which
are intended to have the effect of fully indemnifying him or
her and holding him or her harmless with respect to any
claims, liabilities and costs arising out of or relating to
his or her service as an Employee/Executive Officer in good
faith in a manner reasonably believed to be in the best
interests of the Trust, except to the extent he or she would
otherwise be liable to the Trust by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office, within
the meaning of Section 17(h) of the 0000 Xxx.
(g) The Trust shall provide coverage to each Employee/Executive
Officer under its directors and officers liability policy that
is appropriate to the Employee/Executive Officer's role and
title, and that is consistent with coverage applicable to
other executive management-level officers;
(h) An Employee/Executive Officer that serves as a Certifying
Officer shall have the full discretion to decline to certify a
particular Report that fails to meet the standards set forth
in the Certification, to report matters involving fraud or
other failure to meet the standards of applicable law to the
audit committee of the Board, or in appropriate circumstances,
to resign from his or her position, in the event that he or
she reasonably determines that there has been or is likely to
be (a) a material deviation from the BISYS Policies, (b) a
violation of Xxxxxxxx-Xxxxx or other applicable laws, or (c) a
material deviation by the Trust from the terms of this
Agreement governing the services of such Certifying Officer
that is not caused by such Certifying Officer or BISYS.
(i) Each Employee/Executive Officer that serves as a Certifying
Officer may, and the Trust shall, promptly notify BISYS of any
issue, matter or event that would be reasonably likely to
result in any claim by the Fund, the Fund's shareholders or
any third party which involves an allegation that any Report
failed to meet the standards of applicable laws or that any of
the Trust's Certifying Officers failed to exercise their
obligations to the Fund in a manner consistent with
Xxxxxxxx-Xxxxx and other applicable laws.
20
(J) Notwithstanding any provision of this Agreement that expressly
or by implication provides to the contrary, (a) it is
expressly agreed and acknowledged that BISYS cannot ensure
that the Trust complies with Xxxxxxxx-Xxxxx, and (b) if a
BISYS employee serves as an Executive Officer of the Trust, as
long as such Executive Officer acts in good faith and in a
manner reasonably believed to be in the best interests of the
Trust (and would not otherwise be liable to the Trust by
reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of
his or her office), the Trust shall indemnify the Executive
Officer and BISYS and hold the Executive Officer and BISYS
harmless from any loss, liability, expenses (including
reasonable attorneys fees) and damages incurred by them
arising out of or resulting from the service of such
Employee/Executive Officer as a Certifying Officer or other
executive officer of the Trust.
21
