FUND ADMINISTRATION SERVICING AGREEMENT
THIS
AGREEMENT is made and entered into this 1st day of April, 2006, by and between
RAINIER INVESTMENT MANAGEMENT MUTUAL FUNDS, a Delaware
statutory trust (the “Trust”) and U.S. BANCORP FUND SERVICES,
LLC, a Wisconsin limited liability company (“USBFS”).
WHEREAS,
the Trust is registered under the Investment Company Act of 1940, as amended
(the “1940 Act”), as an open-end management investment company, and is
authorized to issue shares of beneficial interest in separate series, with
each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS,
USBFS is, among other things, in the business of providing fund administration
services for the benefit of its customers; and
WHEREAS,
the Trust desires to retain USBFS to provide fund administration services to
each series of the Trust listed on Exhibit A hereto (as amended from time
to time) (each a “Fund” and collectively, the “Funds”).
NOW,
THEREFORE, in consideration of the promises and mutual covenants 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:
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1.
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Appointment
of USBFS as Administrator
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The
Trust
hereby appoints USBFS as administrator of the Trust on the terms and conditions
set forth in this Agreement, and USBFS hereby accepts such appointment and
agrees to perform the services and duties set forth in this
Agreement. The services and duties of USBFS shall be confined to
those matters expressly set forth herein, and no implied duties are assumed
by
or may be asserted against USBFS hereunder.
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2.
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Services
and Duties of USBFS
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USBFS
shall provide the following administration services to the Fund:
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A.
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General
Fund Management:
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(1)
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Act
as liaison among Fund service
providers.
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(2)
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Supply:
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a.
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Corporate
secretarial services.
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b.
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Office
facilities (which may be in USBFS’s, or an affiliate’s, own
offices).
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c.
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Non-investment-related
statistical and research data as
needed.
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1
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(3)
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Coordinate
the Trust’s board of trustees’ (the “Board of Trustees” or the “Trustees”)
communications, such as:
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a.
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Prepare
meeting agendas and resolutions, with the assistance of Fund
counsel.
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b.
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Prepare
reports for the Board of Trustees based on financial and administrative
data.
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c.
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Evaluate
independent auditor.
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d.
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Secure
and monitor fidelity bond and director and officer liability coverage,
and
make the necessary Securities and Exchange Commission (the “SEC”) filings
relating thereto.
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e.
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Prepare
minutes of meetings of the Board of Trustees and Fund
shareholders.
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f.
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Recommend
dividend declarations to the Board of Trustees and prepare and distribute
to appropriate parties notices announcing declaration of dividends
and
other distributions to
shareholders.
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g.
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Provide
personnel to serve as officers of the Trust if so elected by the
Board of
Trustees, attend Board of Trustees meetings and present materials
for
Trustees’ review at such meetings.
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(4)
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Audits:
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a.
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Prepare
appropriate schedules and assist independent
auditors.
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b.
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Provide
information to the SEC and facilitate audit
process.
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c.
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Provide
office facilities.
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(5)
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Assist
in overall operations of the Fund.
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(6)
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Pay
Fund expenses upon written authorization from the
Trust.
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(7)
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Keep
the Trust’s governing documents, including its charter, bylaws and minute
books, but only to the extent such documents are provided to USBFS
by the
Trust or its representatives for safe
keeping.
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B.
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Compliance:
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(1)
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Regulatory
Compliance:
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a.
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Monitor
compliance with the 1940 Act requirements,
including:
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(i)
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Asset
diversification tests.
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(ii)
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Total
return and SEC yield calculations.
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(iii)
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Maintenance
of books and records under Rule
31a-3.
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(iv)
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Code
of ethics requirements under Rule 17j-1 for the disinterested
Trustees.
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b.
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Monitor
Fund's compliance with the policies and investment limitations as
set
forth in its prospectus (the “Prospectus”) and statement of additional
information (the “SAI”).
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c.
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Perform
its duties hereunder in compliance with all applicable laws and
regulations and provide any sub-certifications reasonably requested
by the
Trust in connection with any certification required of the Trust
pursuant
to the Xxxxxxxx-Xxxxx Act of 2002 (the “SOX Act”) or any rules or
regulations promulgated by the SEC thereunder, provided the same
shall not
be deemed to change USBFS’s standard of care as set forth
herein.
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2
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d.
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Monitor
applicable regulatory and operational service issues, and update
Board of
Trustees periodically.
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(2)
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Blue
Sky Compliance:
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a.
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Prepare
and file with the appropriate state securities authorities any and
all
required compliance filings relating to the qualification of the
securities of the Fund so as to enable the Fund to make a continuous
offering of its shares in all
states.
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b.
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Monitor
status and maintain registrations in each
state.
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c.
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Provide
updates regarding material developments in state securities
regulation.
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(3)
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SEC
Registration and Reporting:
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a.
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Assist
Fund counsel in annual update of the Prospectus and SAI and in preparation
of proxy statements as needed.
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b.
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Prepare
and file annual and semiannual shareholder reports, Form N-SAR, Form
N-CSR, and Form N-Q filings and Rule 24f-2 notices. As
requested by the Trust, prepare and file Form N-PX
filings.
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c.
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Assist
with the printing, filing and mailing of Prospectuses and shareholder
reports, and amendments and supplements thereto as requested by
Adviser..
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d.
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File
fidelity bond under Rule 17g-1.
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e.
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Monitor
sales of Fund shares and ensure that such shares are properly registered
or qualified, as applicable, with the SEC and the appropriate state
authorities.
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(4)
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IRS
Compliance:
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a.
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Monitor
the Trust’s status as a regulated investment company under Subchapter M of
the Internal Revenue Code of 1986, as amended (the “Code”), including
without limitation, review of the
following:
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(i)
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Asset
diversification requirements.
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(ii)
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Qualifying
income requirements.
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(iii)
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Distribution
requirements.
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b.
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Calculate
required distributions (including excise tax
distributions).
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3
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C.
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Financial
Reporting:
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(1)
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Provide
financial data required by the Prospectus and
SAI.
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(2)
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Prepare
financial reports for officers, shareholders, tax authorities, performance
reporting companies, the Board of Trustees, the SEC, and independent
accountants.
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(3)
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Supervise
the Fund’s custodian and fund accountants in the maintenance of the Fund’s
general ledger and in the preparation of the Fund’s financial statements,
including oversight of expense accruals and payments, the determination
of
net asset value and the declaration and payment of dividends and
other
distributions to shareholders.
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(4)
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Compute
the yield, total return, expense ratio and portfolio turnover rate
of each
class of the Fund.
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(5)
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Monitor
the expense accruals and notify the Trust’s management of any proposed
adjustments.
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(6)
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Prepare
quarterly financial statements, which include, without limitation,
the
following items:
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a.
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Schedule
of Investments.
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b.
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Statement
of Assets and Liabilities.
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c.
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Statement
of Operations.
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d.
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Statement
of Changes in Net Assets.
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e.
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Statement
of Cash Flows (as applicable).
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f.
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Schedule
of Capital Gains and Losses (including unrealized gains and
losses).
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(7)
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Prepare
quarterly broker security transaction
summaries.
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D.
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Tax
Reporting:
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(1)
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File
on a timely basis appropriate federal and state tax returns including,
without limitation, Forms 1120/8610, with any necessary
schedules.
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(2)
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Prepare
state income breakdowns where
relevant.
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(3)
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File
Form 1099 for payments to disinterested Trustees and other service
providers.
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(4)
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Prepare
periodic Distributable Realized Gains Reports, including wash sale
losses
information, when applicable.
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(5)
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Calculate
eligible dividend income for corporate
shareholders.
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E.
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Pro
forma analysis: Provide the Adviser, upon reasonable request,
estimated expense and break-even analysis for new funds or share
classes
the Adviser or Trust may propose from time to
time.
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3.
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Compensation
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USBFS
shall be compensated for providing the services set forth in this Agreement
in
accordance with the fee schedule set forth on Exhibit B hereto (as
amended from time to time). USBFS shall also be compensated for such
out-of-pocket expenses as are described on that Exhibit B and as are
reasonably incurred by USBFS in performing its duties hereunder. The
Trust shall pay all such fees and reimbursable expenses within 30 calendar
days
following receipt of the billing notice, except for any fee or expense subject
to a good faith dispute. The Trust shall notify USBFS in writing
within 30 calendar days following receipt of each invoice if the Trust is
disputing any amounts in good faith. The Trust shall pay such disputed amounts
within 10 calendar days of the day on which the parties agree to the amount
to
be paid. With the exception of any fee or expense the Trust is
disputing in good faith as set forth above, unpaid invoices shall accrue a
finance charge of 1½% per month after the due date. Notwithstanding anything to
the contrary, amounts owed by the Trust to USBFS shall only be paid out of
the
assets and property of the particular Fund involved.
4
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4.
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Representations
and Warranties
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A.
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The
Trust hereby represents and warrants to USBFS, which representations
and
warranties shall be deemed to be continuing throughout the term of
this
Agreement, that:
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(1)
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It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
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(2)
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This
Agreement has been duly authorized, executed and delivered by the
Trust in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of the Trust, enforceable 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; and
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(3)
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It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement.
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B.
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USBFS
hereby represents and warrants to the Trust, which representations
and
warranties shall be deemed to be continuing throughout the term of
this
Agreement, that:
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(1)
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It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
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(2)
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This
Agreement has been duly authorized, executed and delivered by USBFS
in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of USBFS, enforceable 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; and
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5
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(3)
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It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement.
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5.
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Standard
of Care; Indemnification; Limitation of Liability
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A.
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USBFS
shall exercise reasonable care in the performance of its duties under
this
Agreement. USBFS shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Trust in connection
with
its duties under this Agreement, including losses resulting from
mechanical breakdowns or the failure of communication or power supplies
beyond USBFS’s control, except a loss arising out of or relating to
USBFS’s refusal or failure to comply with the terms of this Agreement or
from its bad faith, negligence, or willful misconduct in the performance
of its duties under this Agreement. Notwithstanding any other
provision of this Agreement, if USBFS has exercised reasonable care
in the
performance of its duties under this Agreement, the Trust shall indemnify
and hold harmless USBFS from and against any and all claims, demands,
losses, expenses, and liabilities of any and every nature (including
reasonable attorneys’ fees) that USBFS may sustain or incur or that may be
asserted against USBFS by any person arising out of any action taken
or
omitted to be taken by it in performing the services hereunder (i)
in
accordance with the foregoing standards, or (ii) in reliance upon
any
written or oral instruction provided to USBFS by any duly authorized
officer of the Trust, as approved by the Board of Trustees of the
Trust,
except for any and all claims, demands, losses, expenses, and liabilities
arising out of or relating to USBFS’s refusal or failure to comply with
the terms of this Agreement or from its bad faith, negligence or
willful
misconduct in the performance of its duties under this
Agreement. This indemnity shall be a continuing obligation of
the Trust, its successors and assigns, notwithstanding the termination
of
this Agreement. As used in this paragraph, the term “USBFS”
shall include USBFS’s directors, officers and
employees.
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USBFS
shall indemnify and hold the Trust harmless from and against any and all claims,
demands, losses, expenses, and liabilities of any and every nature (including
reasonable attorneys’ fees) that the Trust may sustain or incur or that may be
asserted against the Trust by any person arising out of any action taken or
omitted to be taken by USBFS as a result of USBFS’s refusal or failure to comply
with the terms of this Agreement, or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this
Agreement. This indemnity shall be a continuing obligation of USBFS,
its successors and assigns, notwithstanding the termination of this
Agreement. As used in this paragraph, the term “Trust” shall include
the Trust’s directors, officers and employees.
6
Neither
party to this Agreement shall be liable to the other party for consequential,
special or punitive damages under any provision of this Agreement.
In
the
event of a mechanical breakdown or failure of communication or power supplies
beyond its control, USBFS shall take all reasonable steps to minimize service
interruptions for any period that such interruption continues. USBFS
will make every reasonable effort to restore any lost or damaged data and
correct any errors resulting from such a breakdown at the expense of
USBFS. USBFS agrees that it shall, at all times, have reasonable
contingency plans with appropriate parties, making reasonable provision for
emergency use of electrical data processing equipment to the extent appropriate
equipment is available. Representatives of the Trust shall be
entitled to inspect USBFS’s premises and operating capabilities at any time
during regular business hours of USBFS, upon reasonable notice to
USBFS. Moreover, USBFS shall provide the Trust, at such times as the
Trust may reasonably require, copies of reports rendered by independent
accountants on the internal controls and procedures of USBFS relating to the
services provided by USBFS under this Agreement.
Notwithstanding
the above, USBFS reserves the right to reprocess and correct administrative
errors at its own expense.
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B.
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In
order that the indemnification provisions contained in this section
shall
apply, it is understood that if in any case the indemnitor may be
asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be
fully
and promptly advised of all pertinent facts concerning the situation
in
question, and it is further understood that the indemnitee will use
all
reasonable care to notify the indemnitor promptly concerning any
situation
that presents or appears likely to present the probability of a claim
for
indemnification. The indemnitor shall have the option to defend the
indemnitee against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects, it
will so notify the indemnitee and thereupon the indemnitor shall
take over
complete defense of the claim, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no
case confess any claim or make any compromise in any case in which
the
indemnitor will be asked to indemnify the indemnitee except with
the
indemnitor’s prior written consent.
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C.
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The
indemnity and defense provisions set forth in this Section 5 shall
indefinitely survive the termination and/or assignment of this
Agreement.
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7
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D.
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If
USBFS is acting in another capacity for the Trust pursuant to a separate
agreement, nothing herein shall be deemed to relieve USBFS of any
of its
obligations in such other capacity.
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6.
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Data
Necessary to Perform
Services
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The
Trust
or its agent shall furnish to USBFS the data necessary to perform the services
described herein at such times and in such form as mutually agreed
upon.
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7.
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Proprietary
and Confidential
Information
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USBFS
agrees on behalf of itself and its directors, officers, and employees to treat
confidentially and as proprietary information of the Trust, all records and
other information relative to the Trust and prior, present, or potential
shareholders of the Trust (and clients of said shareholders), and not to use
such records and information for any purpose other than the performance of
its
responsibilities and duties hereunder, except (i) after prior notification
to
and approval in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld where USBFS may be exposed to civil or criminal
contempt proceedings for failure to comply, (ii) when requested to divulge
such
information by duly constituted authorities, or (iii) when so requested by
the
Trust. Records and other information which have become known to the
public through no wrongful act of USBFS or any of its employees, agents or
representatives, and information that was already in the possession of USBFS
prior to receipt thereof from the Trust or its agent, shall not be subject
to
this paragraph.
Further,
USBFS will adhere to the privacy policies adopted by the Trust pursuant to
Title
V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to
time. In this regard, USBFS shall have in place and 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 the Trust and its
shareholders.
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8.
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Records
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USBFS
shall keep records relating to the services to be performed hereunder in the
form and manner, and for such period, as it may deem advisable and is agreeable
to the Trust, but not inconsistent with the rules and regulations of appropriate
government authorities, in particular, Section 31 of the 1940 Act and the rules
thereunder. USBFS agrees that all such records prepared or maintained
by USBFS relating to the services to be performed by USBFS hereunder are the
property of the Trust and will be preserved, maintained, and made available
in
accordance with such applicable sections and rules of the 1940 Act and will
be
promptly surrendered to the Trust or its designee on and in accordance with
its
request.
8
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9.
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Compliance
with Laws
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The
Trust
has and retains primary responsibility for all compliance matters relating
to
the Fund, including but not limited to compliance with the 1940 Act, the Code,
the SOX Act, the USA Patriot Act of 2002 and the policies and limitations of
the
Fund relating to its portfolio investments as set forth in its Prospectus and
SAI. USBFS’s services hereunder shall not relieve the Trust of its
responsibilities for assuring such compliance or the Board of Trustee’s
oversight responsibility with respect thereto.
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10.
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Term
of Agreement; Amendment
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This
Agreement shall become effective as of the date first written above and will
continue in effect for a period of two (2) years, which may be extended for
an
additional three (3) year term at the election of the Trust. Subsequent to
the
initial two-year term (and any three-year extension), this Agreement may be
terminated by either party upon giving 180 days’ prior written notice to the
other party or such shorter period as is mutually agreed upon by the parties.
Notwithstanding the foregoing, this Agreement may be terminated by any party
upon the breach of the other party of any material term of this Agreement if
such breach is not cured within 15 days of notice of such breach to the
breaching party. This Agreement may also be terminated by the Trust
at any time upon giving 180 days’ prior written notice to USBFS after either
USBFS or Rainier Investment Management, Inc. has agreed to effect a transaction
(subject to customary closing conditions) that would result in its change of
control within the meaning of the 1940 Act. This Agreement may not be
amended or modified in any manner except by written agreement executed by USBFS
and the Trust, and authorized or approved by the Board of Trustees.
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11.
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Duties
in the Event of
Termination
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In
the
event that, in connection with termination, a successor to any of USBFS’s duties
or responsibilities hereunder is designated by the Trust by written notice
to
USBFS, USBFS will promptly, upon such termination and at the expense of the
Trust, transfer to such successor all relevant books, records, correspondence,
and other data established or maintained by USBFS under this Agreement in a
form
reasonably acceptable to the Trust (if such form differs from the form in which
USBFS has maintained the same, the Trust shall pay any expenses associated
with
transferring the data to such form), and will cooperate in the transfer of
such
duties and responsibilities, including provision for assistance from USBFS’s
personnel in the establishment of books, records, and other data by such
successor. If no such successor is designated, then such books,
records and other data shall be returned to the Trust.
9
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12.
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Assignment
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This
Agreement shall extend to and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that this Agreement shall
not be assignable by the Trust without the written consent of USBFS, or by
USBFS
without the written consent of the Trust accompanied by the authorization or
approval of the Trust’s Board of Trustees.
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13.
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Governing
Law
|
This
Agreement shall be construed in accordance with the laws of the State of
Wisconsin, without regard to conflicts of law principles. 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 SEC
thereunder.
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14.
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No
Agency Relationship
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Nothing
herein contained shall be deemed to authorize or empower either party to act
as
agent for the other party to this Agreement, or to conduct business in the
name,
or for the account, of the other party to this Agreement.
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15.
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Services
Not Exclusive
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Nothing
in this Agreement shall limit or restrict USBFS from providing services to
other
parties that are similar or identical to some or all of the services provided
hereunder.
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16.
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Invalidity
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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.
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17.
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Notices
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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 on the date delivered
personally or by courier service, or three days after sent by registered or
certified mail, postage prepaid, return receipt requested, or on the date sent
and confirmed received by facsimile transmission to the other party’s address
set forth below:
10
Notice
to
USBFS shall be sent to:
U.S.
Bancorp Fund Services, LLC
000
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
and
notice to the Trust shall be sent to:
Rainier
Investment Management, Inc.
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
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18.
|
Multiple
Originals
|
This
Agreement may be executed on two or more counterparts, each of which when so
executed shall be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
11
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
a duly authorized officer on one or more counterparts as of the date first
above
written.
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U.S.
BANCORP FUND SERVICES, LLC
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By:
/s/ Xxxx X’Xxxxxxxx
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By:
Xxxxxxx X. XxXxx
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Name:
Xxxx X’Xxxxxxxx
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Name:
Xxxxxxx X. XxXxx
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Title:
President
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Title:
Sr. Vice President
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12
Exhibit
A
to
the
Separate
Series of Rainier Investment Management Mutual Funds
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Name
of Series
|
Date
Added
|
|
|
Rainier
Balanced Portfolio
|
5-10-1994
|
|
|
Rainier
Balanced Portfolio I
|
5-2-2002
|
|
|
Rainier
Core Equity Portfolio
|
5-10-1994
|
|
|
Rainier
Core Equity Portfolio I
|
5-2-2002
|
|
|
Rainier
Growth Equity Portfolio
|
5-2-2002
|
|
|
Rainier
Intermediate Fixed Income Portfolio
|
5-2-2002
|
|
|
Rainier
Small/Mid Cap Equity Portfolio
|
5-10-1994
|
|
|
Rainier
Small/Mid Cap Equity Portfolio I
|
5-2-2002
|
|
|
Rainier
Mid Cap Equity Portfolio
|
on
or about
|
12-7-2005
|
|
Rainier
Mid Cap Equity Portfolio I
|
on
or about
|
12-7-2005
|
A-1
Exhibit
B
to
the
Fee
Schedule
Please
see the Master Annual Fee Schedule effective April 1, 2006.
B-1
