ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
THIS AGREEMENT is made as of this ___ day of ____________, 200_,
by and between _______ Funds, a ____________ business trust (the
"Trust"), and UMB Fund Services, Inc., a Wisconsin corporation (the
"Administrator").
WHEREAS, the Trust is an open-end investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act")
and is authorized to issue shares of beneficial interests (the
"Shares") in separate series with each such series representing
interests in a separate portfolio of securities and other assets; and
WHEREAS, the Trust and the Administrator desire to enter into an
agreement pursuant to which the Administrator shall provide
administration and fund accounting services to such investment
portfolios of the Trust as are listed on Schedule A hereto and any
additional investment portfolios the Trust and Administrator may agree
upon and include on Schedule A as such Schedule may be amended from
time to time (such investment portfolios and any additional investment
portfolios are individually referred to as a "Fund" and collectively
the "Funds").
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein contained and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. Appointment
The Trust hereby appoints the Administrator as administrator and
fund accountant of the Funds for the period and on the terms set forth
in this Agreement. The Administrator accepts such appointment and
agrees to render the services herein set forth, for the compensation
herein provided.
2. Services as Administrator
(a) Subject to the direction and control of the Trust's Board of
Trustees and utilizing information provided by the Trust and its
current and prior agents and service providers, the Administrator will
provide the services listed on Schedule B hereto. The duties of the
Administrator shall be confined to those expressly set forth therein,
and no implied duties are assumed by or may be asserted against the
Administrator hereunder.
(b) The Trustees of the Trust shall cause the officers, trustees,
investment adviser(s) and sub-advisers, legal counsel, independent
accountants, transfer agent, custodian and other service providers and
agents, past or present, for the Funds to cooperate with the
Administrator and to provide the Administrator with such information,
documents and advice relating to the Funds and the Trust as necessary
and/or appropriate or as requested by the Administrator, in order to
enable the Administrator to perform its duties hereunder. In
connection with its duties hereunder, the Administrator shall (without
investigation or verification) be entitled and is hereby instructed
to, rely upon any and all instructions, advice, information or
documents provided to the Administrator by an officer or
representative of the Funds or by any of the aforementioned persons.
The Administrator shall be entitled to rely on any document that it
reasonably believes to be genuine and to have been signed or presented
by the proper party. Fees charged by such persons shall be an expense
of the Trust. The Administrator shall not be held to have notice of
any change of authority of any officer, agent, representative or
employee of the Trust, investment adviser(s) or service provider until
receipt of written notice thereof from the Trust. As used in this
Agreement, the term "Investment Adviser" includes all sub-advisers or
persons performing similar services.
(c) To the extent required by Rule 31a-3 under the 1940 Act, the
Administrator hereby agrees that all records which it maintains for
the Trust pursuant to its duties hereunder are the property of the
Trust and further agrees to surrender promptly to the Trust any of
such records upon the Trust's request. Subject to the terms of
Section 6, and where applicable, the Administrator further agrees to
preserve for the periods prescribed by Rule 31a-2 under the 1940 Act
the records described in Schedule B which are maintained by the
Administrator for the Trust.
(d) It is understood that in determining security valuations, the
Administrator employs one or more pricing services, as directed by the
Trust, to determine valuations of portfolio securities for purposes of
calculating net asset values of the Trust. The Trust shall identify
to the Administrator the pricing service(s) to be utilized on behalf
of the Trust. The Administrator shall price the securities and other
holdings of the Trust for which market quotations or prices are
available by the use of such services. For those securities where
prices are not provided by the pricing service(s) utilized by the
Administrator, the Trust shall approve, in good faith, the method for
determining the fair value of the securities. The Trust's investment
adviser shall determine or obtain the valuation of the securities in
accordance with those procedures and shall deliver to the
Administrator the resulting prices for use in its calculation of net
asset values. The Administrator is authorized to rely on the prices
provided by such service(s) or by the Trust's investment adviser(s) or
other authorized representative of the Trust without investigation or
verification.
(e) The Trust's Board of Trustees and the Funds' investment
adviser(s) have and retain primary responsibility for all compliance
matters relating to the Funds including but not limited to compliance
with the 1940 Act, the Internal Revenue Code of 1986, as amended, and
the policies and limitations of each Fund relating to the portfolio
investments as set forth in the Prospectus and Statement of Additional
Information. The Administrator's monitoring and other functions
hereunder shall not relieve the Board and the investment adviser(s) of
their primary day-to-day responsibility for assuring such compliance.
(f) The Trust hereby certifies that each Fund is lawfully eligible
for sale in each jurisdiction indicated for such Fund on the list
furnished to the Administrator as of the date of this Agreement.
3. Fees; Delegation; Expenses
(a) In consideration of the services rendered pursuant to this
Agreement, the Trust will pay the Administrator a fee, computed daily
and payable monthly, plus out-of-pocket expenses, each as provided in
Schedule C hereto. In addition, to the extent that the Administrator
corrects, verifies or addresses any prior actions or inactions by any
Fund or by any prior service provider, the Administrator shall be
entitled to additional fees as provided in Schedule C. Fees shall be
paid by each Fund at a rate that would aggregate at least the
applicable minimum fee for each Fund. Basis point fees and minimum
annual fees apply separately to each Fund, and average net assets are
not aggregated in calculating the applicable basis point fee per Fund
or the applicable minimum. Fees shall be adjusted in accordance with
Schedule C or as otherwise agreed to by the parties from time to time.
The parties may amend this Agreement to include fees for any
additional services requested by the Trust, enhancements to current
services, or to add Funds for which the Administrator has been
retained. The Trust agrees to pay the Administrator's then current
rate for additional services provided, or for enhancements to existing
services currently provided, after the execution of this Agreement.
(b) For the purpose of determining fees payable to the
Administrator, net asset value shall be computed in accordance with
the Trust's Prospectuses and resolutions of the Trust's Board of
Trustees. The fee for the period from the day of the month this
Agreement is entered into until the end of that month shall be pro-
rated according to the proportion that such period bears to the full
monthly period. Upon any termination of this Agreement before the end
of any month, the fee for such part of a month shall be pro-rated
according to the proportion which such period bears to the full
monthly period and shall be payable upon the date of termination of
this Agreement. Should the Trust be liquidated, merged with or
acquired by another fund or investment company, any accrued fees shall
be immediately payable.
(c) The Administrator will bear all expenses incurred by it in
connection with the performance of its services under Section 2,
except as otherwise provided herein. The Administrator shall not be
required to pay or finance any costs and expenses incurred in the
operation of the Funds, including, but not limited to: taxes;
interest; brokerage fees and commissions; salaries, fees and expenses
of officers and Trustees; Securities and Exchange Commission (the
"Commission") fees and state Blue Sky fees; advisory fees; charges of
custodians, transfer agents, dividend disbursing and accounting
services agents and other service providers; security pricing
services; insurance premiums; outside auditing and legal expenses;
costs of organization and maintenance of corporate existence; taxes
and fees payable to federal, state and other governmental agencies;
preparation, typesetting, printing, proofing and mailing of
prospectuses, statements of additional information, supplements,
notices, forms and applications and proxy materials for regulatory
purposes and for distribution to current shareholders; preparation,
typesetting, printing, proofing and mailing and other costs of
shareholder reports; expenses in connection with the electronic
transmission of documents and information including electronic filings
with the Commission and the states; research and statistical data
services; expenses incidental to holding meetings of the Fund's
shareholders and Trustees; fees and expenses associated with internet,
e-mail and other related activities; and extraordinary expenses.
Expenses incurred for distribution of shares, including the
typesetting, printing, proofing and mailing of prospectuses for
persons who are not shareholders of the Trust, will be borne by the
Funds' investment adviser, except for such expenses permitted to be
paid by the Trust under a distribution plan adopted in accordance with
applicable laws. The Administrator shall not be required to pay any
Blue Sky fees or take any related Blue Sky actions unless and until it
has received the amount of such fees from the Trust.
(d) Except as otherwise specified, fees payable hereunder shall be
calculated in arrears and billed on a monthly basis. The Trust agrees
to pay all fees within thirty days of receipt of each invoice. The
Administrator retains the right to charge interest in the amount of 1-
1/2 percent per month on any amounts that remain unpaid beyond such
thirty day period.
4. Proprietary and Confidential Information
The Administrator agrees on behalf of itself and its employees to
treat confidentially and as proprietary information of the Trust all
records relative to the Funds' shareholders, not to use such records
and information for any purpose other than performance of its
responsibilities and duties hereunder, and not to disclose such
information except where the Administrator may be exposed to civil or
criminal proceedings for failure to comply, when requested to divulge
such information by duly constituted authorities or court process,
when subject to governmental or regulatory audit or investigation, or
when so requested by the Trust. In case of any requests or demands for
inspection of the records of the Funds, the Administrator will
endeavor to notify the Trust promptly and to secure instructions from
a representative of the Trust as to such inspection. Records and
information which have become known to the public through no wrongful
act of the Administrator or any of its employees, agents or
representatives, and information which was already in the possession
of the Administrator prior to receipt thereof, shall not be subject to
this paragraph.
5. Limitation of Liability
(a) The Administrator shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Funds in
connection with the matters to which this Agreement relates, except
for a loss resulting from the Administrator's willful misfeasance, bad
faith or gross negligence in the performance of its duties or from
reckless disregard by it of its obligations and duties under this
Agreement. Furthermore, the Administrator shall not be liable for (i)
any action taken or omitted to be taken in accordance with or in
reliance upon written or oral instructions, advise, data, documents or
information (without investigation or verification) received by the
Administrator from an officer or representative of the Trust, or from
a representative of any of the parties referenced in Section 2, (ii)
its reliance on the security valuations without investigation or
verification provided by pricing service(s), the Trust's investment
adviser(s) or representatives of the Trust, or (iii) any action taken
or omission by a Fund, the Trust, investment adviser(s) or any past or
current service provider.
(b) The Administrator assumes no responsibility hereunder,
and shall not be liable, for any default, damage, loss of data or
documents, errors, delay or any other loss whatsoever caused by events
beyond its reasonable control. The Administrator will, however, take
all reasonable steps to minimize service interruptions for any period
that such interruption continues beyond its control.
(c) The Trust agrees to indemnify and hold harmless the
Administrator, its employees, agents, officers, directors, affiliates
and nominees (collectively, the "Indemnified Parties") from and
against any and all claims, demands, actions and suits, and from and
against any and all judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses of every nature
and character which may be asserted against or incurred by any
Indemnified Party or for which any Indemnified Party may be held
liable (a "Claim") arising out of or in any way relating to (i) the
Administrator's actions or omissions except to the extent a Claim
resulted from the Administrator's willful misfeasance, bad faith, or
gross negligence in the performance of its duties hereunder or from
reckless disregard by it of its obligations and duties hereunder; (ii)
the Administrator's reliance on, implementation of or use of (without
investigation or verification) advice, instructions, requests,
directions, information, data, records and documents received by the
Administrator from any party referenced in Section 2 hereof or other
representative of the Trust, (iii) any breach of any of the Trust's
obligations, representations or warranties hereunder, or (iv) any
action taken by or omission of the Trust, investment adviser(s) or any
past or current service provider.
(d) In no event and under no circumstances shall the
Administrator, its affiliates or any of its or their officers,
directors, members, agents or employees be liable to anyone,
including, without limitation, the other party, under any theory of
tort, contract, strict liability or other legal or equitable theory
for lost profits, exemplary, punitive, special, indirect or
consequential damages for any act or failure to act under any
provision of this Agreement regardless of whether such damages were
foreseeable and even if advised of the possibility thereof. The
indemnity and defense provisions set forth in this Section 5 shall
indefinitely survive the termination and/or assignment of this
Agreement.
6. Term
(a) This Agreement shall become effective with respect to each
Fund listed on Schedule A hereof as of the date this Agreement is
executed and, with respect to each Fund not in existence on that date,
on the date an amendment to Schedule A to this Agreement relating to
that Fund is executed. This Agreement shall continue in effect with
respect to each Fund until terminated as provided herein.
(b) Either party may terminate this Agreement at any time by
giving the other party a written notice not less than sixty (60) days
prior to the date the termination is to be effective. The terms of
this Agreement shall not be waived, altered, modified, amended or
supplemented in any manner whatsoever except by a written instrument
signed by the Administrator and the Trust.
(c) Notwithstanding anything herein to the contrary, upon the
termination of this Agreement or the liquidation of a Fund or the
Trust, the Administrator shall deliver the records of the Fund(s)
and/or Trust as the case may be, in the form maintained by the
Administrator (to the extent permitted by applicable license
agreements) to the Trust or person(s) designated by the Trust at the
Trust's cost and expense, and thereafter the Trust or its designee
shall be solely responsible for preserving the records for the periods
required by all applicable laws, rules and regulations. The Trust
shall be responsible for all expenses associated with the movement (or
duplication) of records and materials and conversion thereof to a
successor fund accounting and administrative services agent, including
all reasonable trailing expenses incurred by the Administrator. In
addition, in the event of termination of this Agreement, or the
proposed liquidation or merger of the Trust or a Fund(s), and the
Trust requests the Administrator to provide additional services in
connection therewith, the Administrator shall provide such services
and be entitled to such compensation as the parties may mutually
agree.
(d) Notwithstanding any other provision of this Agreement,
in the event of an agreement to enter into a transaction that would
result in a Change of Control, as hereinafter defined, of the Trust's
investment adviser or sponsor, the Trust's ability to terminate this
Agreement pursuant to this Section 6 shall be suspended from the time
of such agreement until eighteen months after the Change of Control.
For purposes of this Agreement, a "Change of Control" of the
investment adviser or sponsor means a change in ownership or control
of more than fifty percent (50%) of the common stock or shares of
beneficial interest of such investment adviser or sponsor or its
parent company.
7. Non-Exclusivity
The services of the Administrator rendered to the Trust are not
deemed to be exclusive. The Administrator may render such services
and any other services to others, including other investment
companies. The Trust recognizes that from time to time directors,
officers and employees of the Administrator may serve as trustees,
directors, officers and employees of other entities (including other
investment companies), and that the Administrator or its affiliates
may enter into other agreements with such other entities.
8. Governing Law; Invalidity
This Agreement shall be governed by Wisconsin law, excluding the
laws on conflicts of laws. To the extent that the applicable laws of
the State of Wisconsin, or any of the provisions herein, conflict with
the applicable provisions of the 1940 Act, the latter shall control,
and nothing herein shall be construed in a manner inconsistent with
the 1940 Act or any rule or order of the Commission thereunder. Any
provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. In such case, the parties shall
in good faith modify or substitute such provision consistent with the
original intent of the parties.
9. Notices
Any notice required or permitted to be given by either party to
the other shall be in writing and shall be deemed to have been given
when sent by registered or certified mail, postage prepaid, return
receipt requested, as follows: Notice to the Administrator shall be
sent to UMB Fund Services, Inc., 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X,
Xxxxxxxxx, XX, 00000, Attention: Xxxxx Xxxxxxx, with a copy to General
Counsel, and notice to the Trust shall be sent to ________ Funds,
_____________________________________________, Attention: President.
10. Entire Agreement
This Agreement, together with the Schedules attached hereto,
constitutes the entire Agreement of the parties hereto.
11. Trust Limitations
This Agreement is executed by the Trust with respect to each of
the Funds and the obligations hereunder are not binding upon any of
the Trustees, officers or shareholders of the Trust individually but
are binding only upon the Fund to which such obligations pertain and
the assets and property of such Fund. All obligations of the Trust
under this Agreement shall apply only on a Fund-by-Fund basis, and the
assets of one Fund shall not be liable for the obligations of another
Fund. The Fund's Declaration of Trust is on file with the Secretary
of State of _____________.
12. Miscellaneous
(a) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original agreement but such
counterparts shall together constitute but one and the same
instrument. The facsimile signature of any party to this Agreement
shall constitute the valid and binding execution hereof by such party.
(b) The Trust hereby grants to the Administrator the limited power
of attorney on behalf of the Funds to sign Blue Sky forms and related
documents in connection with the performance of its obligations under
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by a duly authorized officer as of the day and year
first above written.
______________________ FUNDS
(the "Trust")
By:_________________________
President
UMB FUND SERVICES, INC.
("Administrator")
By:________________________
President
Schedule A
to the
Administration and Fund Accounting Agreement
by and between
________ Funds
and
UMB Fund Services, Inc.
Name of Funds
Schedule B
to the
Administration and Fund Accounting Agreement
by and between
________ Funds
and
UMB Fund Services, Inc.
SERVICES
Subject to the direction and control of the Trust's Board of Trustees
and utilizing information provided by the Trust and its agents, the
Administrator will:
? provide office space, facilities, equipment and personnel to carry
out its services hereunder;
? compile data for and prepare with respect to the Funds timely
Notices to the Commission required pursuant to Rule 24f-2 under
the 1940 Act and Semi-Annual Reports on Form N-SAR;
? assist in the preparation for execution by the Trust and file all
federal income and excise tax returns and state income tax returns
(and such other required tax filings as may be agreed to by the
parties) other than those required to be made by the Trust's
custodian or transfer agent, subject to the review and approval of
the Trust and the Trust's independent accountants;
? prepare the financial statements for the Annual and Semi-Annual
Reports required pursuant to Section 30(d) under the 1940 Act,
subject to the review and approval of the Trust and the Trust's
independent accountants;
? provide financial and Fund performance information for inclusion in
the Registration Statement for the Trust (on Form N-1A or any
replacement therefor) and any amendments thereto, subject to the
review of Trust counsel;
? determine and periodically monitor each Fund's income and expense
accruals and cause all appropriate expenses to be paid from Trust
assets on proper authorization from the Trust;
? calculate income factors and daily net asset values of each Fund
(i) in accordance with the Trust's operating documents as provided
to the Administrator, and (ii) based on security valuations
provided by the Trust, the Trust's investment adviser, and pricing
service(s), as provided herein;
? maintain all general ledger accounts and related subledgers;
? assist in the acquisition of the Trust 's fidelity bond required by
the 1940 Act, monitor the amount of the bond and make the
necessary Commission filings related thereto;
? from time to time as the Administrator deems appropriate, check
each Fund's compliance with the policies and limitations of each
Fund relating to the portfolio investments as set forth in the
Prospectus and Statement of Additional Information and monitor
each Fund's status as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as amended (but
these functions shall not relieve the Trust's investment adviser
and sub-advisers, if any, of their primary day-to-day
responsibility for assuring such compliance);
? maintain, and/or coordinate with the other service providers the
maintenance of, the accounts, books and other documents required
pursuant to Rule 31a-1(a) and (b) under the 1940 Act;
? prepare and/or file state securities registration compliance
filings, with the advice of the Trust's legal counsel, upon and in
accordance with instructions from the Trust, which instructions
will include the states to qualify in, the amounts of Shares to
initially and subsequently qualify and the warning threshold to be
maintained;
? develop with legal counsel and the secretary of the Trust an agenda
for each board meeting and, if requested by the Trustees, attend
board meetings and prepare minutes;
? prepare Form 1099s for Trustees and other fund vendors;
? calculate dividend and capital gains distributions subject to
review and approval by the Trust and its independent accountants;
and
? generally assist in the Trust 's administrative operations as
mutually agreed to by the parties.
The duties of the Administrator shall be confined to those expressly
set forth herein, and no implied duties are assumed by or may be
asserted against the Administrator hereunder. These services do not
include correcting, verifying or addressing any prior actions or
inactions by any Fund or by any prior service provider. To the extent
the Administrator agrees to take such actions, those actions taken
shall be deemed part of the Schedule B.
Schedule C
to the
Administration and Fund Accounting Agreement
by and between
________ Funds
and
UMB Fund Services, Inc.
[TO BE PROVIDED]
11
