SUB-ADMINISTRATION AGREEMENT
This Sub-Administration Agreement ("Agreement"), dated and effective as
of June 1, 2007, is by and between State Street Bank and Trust Company, a
Massachusetts trust company (the "Sub-Administrator"), and Fifth Third Asset
Management, Inc., an Ohio corporation (the "Administrator").
WHEREAS, the Administrator serves as the administrator to the Fifth
Third Funds, a Massachusetts business trust (the "Trust") pursuant to an
Administration Agreement dated May 18, 2007; and
WHEREAS, the Trust is an open-end management investment company
currently comprised of multiple series (each, a "Fund" and collectively, the
"Funds"), and is registered with the U.S. Securities and Exchange Commission
("SEC") by means of a registration statement ("Registration Statement") under
the Securities Act of 1933, as amended ("1933 Act"), and the Investment Company
Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Administrator desires to retain the Sub-Administrator to
furnish certain administrative services to the Trust, and the Sub-Administrator
is willing to furnish such services, on the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF SUB-ADMINISTRATOR
The Administrator hereby appoints the Sub-Administrator to act as
sub-administrator to the Trust for purposes of providing certain administrative
services for the period and on the terms set forth in this Agreement, subject to
the oversight and direction of the Administrator. The Sub-Administrator accepts
such appointment and agrees to render the services stated herein.
The Trust currently consists of the Fund(s) and their respective
classes of shares as listed in Schedule A to this Agreement. In the event that
the Trust establishes one or more additional Fund(s) with respect to which the
Administrator wishes to retain the Sub-Administrator to act as sub-administrator
hereunder, the Administrator shall notify the Sub-Administrator in writing. Upon
written acceptance by the Sub-Administrator, such Fund(s) shall become subject
to the provisions of this Agreement to the same extent as the existing Fund,
except to the extent that such provisions (including those relating to
compensation and expenses payable) may be modified with respect to such Fund in
writing by the Administrator and the Sub-Administrator at the time of the
addition of such Fund.
2. REPRESENTATIONS AND WARRANTIES OF THE SUB-ADMINISTRATOR
The Sub-Administrator represents and warrants to the Administrator
that:
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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 Sub-Administrator's ability
to perform its duties and obligations under this Agreement;
e. It will at all times comply with applicable rules, regulations
and laws material to the performance of its duties under this
Agreement; and
f. Its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or
obligation of the Sub-Administrator or any law or regulation
applicable to the performance of its duties under this
Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR
The Administrator represents and warrants to the Sub-Administrator
that:
a. It is a corporation, duly organized, existing and in good
standing under the laws of the State of Ohio;
b. It has the requisite power and authority under applicable laws
and by its Articles of Incorporation and Code of Regulations
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 will at all times comply with applicable rules, regulations
and laws material to the performance of its duties under this
Agreement ;
e. 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;
f. Its entrance into this Agreement will 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 the performance of its duties under this
Agreement; and
g. With respect to the Trust:
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(1) The Trust is a business trust duly organized,
existing and in good standing under the laws of the
Commonwealth of Massachusetts;
(2) The Trust is an investment company properly
registered under the 1940 Act;
(3) A registration statement under the 1933 Act and 1940
Act has been filed by the Trust and is effective and
will remain effective during the term of this
Agreement;
(4) 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; and
(5) As of the close of business on the date of this
Agreement, the Trust is authorized to issue shares of
beneficial interest.
4. ADMINISTRATION SERVICES
The Administrator and the Sub-Administrator shall provide
those certain administrative services, as agreed upon by mutual written
agreement of the parties from time to time. The administrative services shall be
performed subject to the authorization and direction of the Administrator and,
in each case where appropriate, the review and comment by the Trust's
independent accountants and legal counsel and in accordance with procedures that
may be established from time to time between the Administrator and the
Sub-Administrator. The Sub-Administrator shall timely deliver such management
reports as are reasonably agreed upon by the Administrator and
Sub-Administrator. The Sub-Administrator shall perform such other services for
the Administrator that are mutually agreed to by the parties from time to time.
The Administrator will pay such fees for such management reports and services as
may be mutually agreed upon, including the Sub-Administrator's reasonable
out-of-pocket expenses. The provision of such services shall be subject to the
terms and conditions of this Agreement.
The Sub-Administrator shall provide the office facilities and the
personnel determined by it to be necessary and appropriate to perform the
services contemplated herein.
5. FEES; EXPENSES; EXPENSE REIMBURSEMENT
The Sub-Administrator shall receive from the Administrator such
compensation for the Sub-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. 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 Administrator shall reimburse
the Sub-Administrator for its reasonable out-of-pocket costs incurred in
connection
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with this Agreement. The Sub-Administrator agrees that all reimbursable travel
expenses will be subject to a corporate travel policy designed to manage such
expenses at a commercially reasonable level. All rights of compensation and
expense reimbursement under this Agreement for services performed as of the
termination date shall survive the termination of this Agreement.
The Sub-Administrator shall not be required to pay any expenses
incurred by the Trust. The Administrator agrees promptly to reimburse the
Sub-Administrator for any equipment and supplies specially ordered at the
Administrator's request or with the Administrator's consent through the
Sub-Administrator and for any other expenses not contemplated by this Agreement
that the Sub-Administrator may incur at the Administrator's request or with the
Administrator's consent. All such reimbursements described herein shall be made
to the Sub-Administrator by the Administrator within thirty (30) days of receipt
by the Administrator of the Sub-Administrator's statement.
The Sub-Administrator is authorized to and may employ, associate or
contract with such person or persons as the Sub-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
Sub-Administrator and that the Sub-Administrator shall be as fully responsible
to the Administrator for the acts and omissions of any such person or persons as
it is for its own acts and omissions.
6. INSTRUCTIONS AND ADVICE
a. At any time, the Sub-Administrator may apply to any officer of the
Administrator or his or her designee for instructions. The Sub-Administrator
may, at the Sub-Administrator's expense, consult with its own legal counsel or,
with the Administrator's prior consent, consult with 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 Sub-Administrator under this Agreement.
b. The Sub-Administrator shall not be liable, and shall be indemnified
by the Administrator, 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 Sub-Administrator shall not be held to have notice of any change of
authority of any person until receipt of written notice thereof from the
Administrator. Nothing in this section shall be construed as imposing upon the
Sub-Administrator any obligation to seek such instructions or advice. The
parties will seek to reconcile any conflicts in good faith.
7. LIMITATION OF LIABILITY AND INDEMNIFICATION
The Sub-Administrator shall be responsible for the performance only of
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, or for compliance by the
Trust with all securities, tax, commodities and other laws, rules and
regulations applicable to the Trust. The Sub-Administrator shall have no
liability in respect of any
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loss, damage or expense suffered by the Trust or the Administrator insofar as
such loss, damage or expense arises from the performance of the
Sub-Administrator's duties hereunder in reliance upon records that were
maintained for the Trust or the Administrator by entities other than the
Sub-Administrator prior to the Sub-Administrator's appointment as
sub-administrator for the Trust; provided, however, that the Sub-Administrator
shall be responsible to confirm that it has entered such records accurately on
its systems. The Sub-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 negligence or willful misconduct of the Sub-Administrator,
its officers or employees. The Sub-Administrator shall not be liable for any
special, indirect, incidental, punitive or consequential damages, including lost
profits, 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, each of which is hereby excluded by agreement
of the parties regardless of whether such damages were foreseeable or whether
either party or any entity had been advised of the possibility of such damages.
In any event, the Sub-Administrator's cumulative liability for each
calendar year (a "Liability Period") with respect to the Trust and the
Administrator under this Agreement regardless of the form of action or legal
theory shall be limited to its total annual compensation earned and fees payable
hereunder during the preceding Compensation Period, as defined herein, for any
liability or loss suffered by the Trust or the Administrator 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 during such
Liability Period. "Compensation Period" shall mean the calendar year ending
immediately prior to each Liability Period in which the event(s) giving rise to
the Sub-Administrator's liability for that period have occurred. Notwithstanding
the foregoing, the Compensation Period for purposes of calculating the annual
cumulative liability of the Sub-Administrator for the Liability Period
commencing on the date of this Agreement and terminating on December 31, 2007
shall be the date of this Agreement through December 31, 2007, calculated on an
annualized basis, and the Compensation Period for the Liability Period
commencing January 1, 2008 and terminating on December 31, 2008 shall be the
date of this Agreement through December 31, 2007, calculated on an annualized
basis.
The Administrator shall indemnify and hold the Sub-Administrator and
its directors, officers, employees and agents harmless from all loss, cost,
damage and expense, including reasonable fees and expenses for counsel, incurred
by the Sub-Administrator resulting from any claim, demand, action or suit in
connection with the Sub-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 Administrator or upon reasonable reliance on information or
records given or made by the Trust orthe Administrator, provided that this
indemnification shall not apply to actions or omissions of the
Sub-Administrator, its officers or employees in cases of its or their own
negligence or willful misconduct.
Neither party shall 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
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circumstances beyond its control, including without limitation, work stoppage,
power or other mechanical failure, computer virus, natural disaster,
governmental action or communication disruption.
The limitation of liability and indemnification contained herein shall
survive the termination of this Agreement.
8. DISASTER RECOVERY
The Sub-Administrator shall implement and maintain reasonable disaster
recovery and business continuity procedures that are reasonably designed to
recover data processing systems, data communications facilities, information,
data and other business related functions of the Sub-Administrator in a manner
and time frame consistent with legal, regulatory and business requirements
applicable to the Sub-Administrator in its provision of services hereunder. In
the event of any disaster which causes a business interruption, the
Sub-Administrator shall act in good faith and take reasonable steps to minimize
service interruptions.
9. XXXXXXXX-XXXXX COMPLIANCE AND RULE 38A-1.
(a) Upon request of the Administrator or the Trust, the
Sub-Administrator will provide to the Administrator in connection with any
periodic annual or semi-annual shareholder report or Form N-Q filed by the Trust
with the Securities and Exchange Commission or, in the absence of the filing of
such reports, on a quarterly basis, a sub-certification pursuant to the
Xxxxxxxx-Xxxxx Act of 2002 with respect to the Sub-Administrator's performance
of the services set forth in this Agreement and its internal controls related
thereto. The Sub-Administrator reserves the right to amend and update its
sub-certifications provided hereunder from time to time in order to address
changing regulatory and industry developments.
(b) The Sub-Administrator maintains and will continue to maintain a
comprehensive compliance program reasonably designed to prevent violations of
the federal securities laws pursuant to Rule 38a-1 under the 1940 Act. Provided
that the Administrator pays the applicable fee pursuant to the Fee Schedule, the
Sub-Administrator will provide periodic measurement reports to the Administrator
and, on a quarterly basis, the Sub-Administrator will provide to the
Administrator a certification in connection with Rule 38a-1 under the 1940 Act.
The Sub-Administrator reserves the right to amend and update its compliance
program and the measurement tools and certifications provided thereunder from
time to time in order to address changing regulatory and industry developments.
10. CONFIDENTIALITY
The Sub-Administrator agrees to treat all Confidential Information
communicated to it by the Administrator in connection with the activities
contemplated by this Agreement as confidential. "Confidential Information" shall
mean all records and information in the Sub-Administrator's possession relating
to the Trust and its shareholders and shareholder accounts. The
Sub-Administrator will not use or disclose Confidential Information for purposes
other than the activities contemplated by this Agreement or except as required
by law, court process or
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pursuant to the lawful requirement of a governmental agency, or if the
Sub-Administrator is advised by counsel that it may incur liability for failure
to make a disclosure, or except at the request or with the written consent of
the Trust. Confidential Information will not include information which: (a) is
or becomes available to the general public through no fault of the
Sub-Administrator; (b) is independently developed by the Sub-Administrator; or
(c) is rightfully received by the Sub-Administrator from a third party without a
duty of confidentiality. Notwithstanding the foregoing, the Administrator
acknowledges that the Sub-Administrator may provide access to and use of
Confidential Information relating to the Trust to the Sub-Administrator's
respective employees, contractors, agents, professional advisors, auditors or
persons performing similar functions who are bound by confidentiality agreements
similar in scope. In addition, the Sub-Administrator may aggregate Fund data
with similar data of other customers of the Sub-Administrator ("Aggregated
Data") and may use Aggregated Data for purposes of constructing statistical
models so long as such Aggregated Data represents such a sufficiently large
sample that no Fund data can be identified either directly or by inference or
implication.
11. RECORDS
In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Sub-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
Sub-Administrator further agrees that all records that 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 may be surrendered in either
written or machine-readable form, at the option of the Sub-Administrator.
12. SERVICES NOT EXCLUSIVE
The services of the Sub-Administrator are not to be deemed exclusive,
and the Sub-Administrator shall be free to render similar services to others;
likewise, the Administrator may receive similar services elsewhere at its own
expense. The Sub-Administrator shall be deemed to be an independent contractor
and shall, unless otherwise expressly provided herein or authorized by the
Administrator from time to time, have no authority to act or represent the
Administrator in any way or otherwise be deemed an agent of the Administrator.
13. TERM, TERMINATION AND AMENDMENT
(a) This Agreement shall become effective as of the date first
above written, and shall remain in effect for an initial term
of three (3) year (the "Initial Term"). Following the Initial
Term, the Agreement shall remain in effect unless terminated
by either party on sixty (60) days' prior written notice. In
the event other Fund(s) are added to this Agreement as set
forth herein, termination of this Agreement with respect to
any given Fund shall in no way affect the continued validity
of this Agreement with respect to any other Fund.
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(b) In addition, either party may terminate this Agreement with
immediate effect at any time upon written notice if:
(i) The other party shall generally not pay its debts as
such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against such
party seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any
law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it
or for any substantial part of its property; or such
party shall take any corporate action to authorize
any of the preceding actions;
(ii) The other party shall commit any material breach
hereunder, which breach, although capable of remedy
within sixty (60) days, has not been remedied by such
party within sixty (60) days after receipt of written
notice specifying the nature of the breach, provided
that the parties shall have completed the escalation
procedure described in Section 22 below;
(iii) The other party shall commit any material breach
hereunder, which breach cannot be remedied with
reasonable efforts within sixty (60) days after
receipt of written notice specifying the nature of
the breach; provided, that if within such sixty (60)
day period the other party has commenced and is
diligently pursuing efforts to remedy such breach,
such party shall have a reasonable period of time in
which to effect a remedy; and provided further, that
the parties shall have completed the escalation
procedure described in Section 22 below;
(iv) The other party shall commit any act of fraud or
willful or intentional misconduct in the performance
of its obligations hereunder; or
(v) The Administrator ceases serving as administrator for
the Trust.
(c) Upon termination of this Agreement, the Administrator shall
pay to the Sub-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.
(d) Upon the termination of this Agreement for any reason, and
provided that the Sub-Administrator and Administrator agree in
writing upon the compensation to be paid by the Administrator,
for a period of up to six (6) months the Sub-Administrator
will perform such services as the parties in good faith agree
in writing are reasonably necessary to facilitate the orderly
transfer of the functions, responsibilities, tasks and
operations comprising the services provided by the
Sub-
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Administrator hereunder to the successor service provider
("Services Transfer Assistance"). Notwithstanding the
foregoing, The Sub-Administrator shall not be required to
disclose any proprietary or confidential material to any
successor service provider or other third party, nor shall it
be required to obtain or develop any data not produced as part
of the services hereunder. Services Transfer Assistance shall
be in addition to the continued provision by the
Sub-Administrator of the services hereunder. Notwithstanding
anything contained in this Agreement to the contrary, the term
of this Agreement and the fee schedule shall continue in full
force and effect so long as the Sub-Administrator provides the
Services Transfer Assistance. In the event of a termination by
the Sub-Administrator due to the Administrator's material
breach of this Agreement, all compensation and reimbursable
expenses of the Sub-Administrator shall be payable by the
Administrator in advance.
(e) This Agreement may be modified or amended from time to time by
mutual written agreement of the parties hereto.
14. 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 Administrator: Fifth Third Asset Management, Inc., 00
Xxxxxxxx Xxxxxx Xxxxx, XX 0000X0, Xxxxxxxxxx, XX 00000; Attn: Xxxxxxx X. Xxxx;
fax:(000) 000-0000.
If to the Sub-Administrator: State Street Bank and Trust Company, X.X.
Xxx 0000, Xxxxxx, XX 00000-0000, Attn: Fund Administration Legal Department,
fax: 000-000-0000.
15. NON-ASSIGNABILITY
This Agreement shall not be assigned by either party hereto without the
prior consent in writing of the other party, except that each party 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 said
party. This Agreement shall be binding on and shall inure to the benefit of the
Administrator and the Sub-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.
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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, xerographic, 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.
21. COUNTERPARTS
This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
22. ESCALATION PROCEDURE
In the event of a claim by either party alleging that the other party
has failed to fulfill its duties and obligations under this Agreement in a
material respect, or any other material dispute relating to this Agreement, the
matter may be referred by the aggrieved party by written notice to the other
party to a Joint Services Committee ("JSC"), consisting of an equal number of
representatives appointed to represent each party. The purpose of a referral to
the JSC shall be to attempt in good faith to resolve the matter referred to it,
which may include, without limitation:
(a) developing and overseeing the implementation of agreed-upon
operational changes necessary to resolve the matter;
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(b) approving and overseeing the implementation of alternative policies
and procedures which meet the parties' respective business
requirements; and/or
(c) otherwise finding a mutually agreed-upon solution.
If the JSC cannot agree in writing within thirty (30) days of its first meeting
on a course of action to resolve the matter, or if despite implementation of the
JSC's recommendations, a party still consistently fails to meet in a material
respect its duties and obligations under this Agreement that were the subject of
the consultation, or fails to meet any revised obligations agreed upon as a
result of the consultation, then the aggrieved party may, by written notice to
the other party, refer the matter for attempted resolution to a group consisting
of the senior business and relationship management officers of each party
("Executive Officers"). The Executive Officers shall meet as promptly as
reasonably possible after the notice is received and shall negotiate in good
faith to attempt to resolve the matter within thirty (30) days of the date of
the referral.
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.
FIFTH THIRD ASSET MANAGEMENT, INC.
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
STATE STREET BANK AND TRUST COMPANY
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
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SUB-ADMINISTRATION AGREEMENT
SCHEDULE A
LISTING OF FUND(S) AND CLASSES OF SHARES
FUND CLASSES OF SHARES
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