CUSTODY ADMINISTRATION AND AGENCY AGREEMENT
This Agreement, dated as of the 5th day of March, 1997
made by and between The Bjurman Fund, (the "Trust") a business trust operating
as an open-end management investment company registered under the Investment
Company Act of 1940, as amended (the "Act"), duly organized and existing
under the laws of the State of Delaware and FPS Services, Inc. ("FPS"), a
corporation duly organized and existing under the laws of the State of
Delaware (collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, the Trust is authorized by its Trust Instrument to issue
separate series of shares representing interests in separate investment
portfolios (the "Series"), which Series are identified on Schedule "B"
attached hereto, and which Schedule "B" may be amended from time to time
by mutual agreement of the Trust and FPS; and
WHEREAS, the Parties desire to enter into an agreement whereby FPS will
provide certain custody administration services on behalf of the Trust on the
terms and conditions set forth in this Agreement; and
WHEREAS, the Trust desires that FPS act as its agent for the specific
purpose of taking receipt of, and making payment for, custody services
performed on the Trust's behalf by The Bank of New York pursuant to an
agreement between The Bank of New York and the Trust; and
WHEREAS, FPS is willing to serve in such capacity and perform such
functions upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for good and valuable consideration, the receipt and
sufficiency is hereby acknowledged, the Parties hereto, intending to be
legally bound, do hereby agree as follows:
APPOINTMENT OF FPS AS AGENT
Section 1. The Trust hereby appoints FPS as an agent of the Trust, and
FPS hereby accepts such appointment, for the limited purpose of: (i) accepting
invoices charged to the Trust for custody services performed by The Bank of
New York on the Trust's behalf, and (ii) remitting payment to The Bank of New
York for such services performed in amounts as set forth in Schedule "A"
attached hereto.
Section 2. As Custody Administrator, FPS shall:
a) coordinate and process portfolio trades through terminal links
with The Bank of New York.
b) input and verify portfolio trades
c) monitor pending and failed security trades
d) coordinate communications between brokers and banks to resolve
any operational problems
e) advise the Trust of any corporate action information, address
and follow up on any dividend or interest discrepancies
f) process the Trust's expenses
g) interface with the accounting services provider and the transfer
agent to research and resolve custody cash problems
h) provide daily and monthly reports
TERM AND FEES
Section 3.
(a) The term of this Agreement shall be for a period of two (2)
years commencing on the date which the Trust's registration statement is
declared effective by the U.S. Securities and Exchange Commission ("Effective
Date") and shall continue thereafter on a year to year term subject to
termination by either Party as set forth below.
(b) After the initial term of this Agreement, the Trust or FPS may
give written notice to the other of the termination of this Agreement, such
termination to take effect at the time specified in the notice, which date
shall not be less than one hundred and eighty (180) days after the date of
receipt of such notice. Upon the effective termination date, the Trust
shall pay to FPS such compensation as may be due as of the date of
termination and shall likewise reimburse FPS for any out-of-pocket expenses
and disbursements reasonably incurred by FPS to such date.
(c) If a successor to any of FPS's duties or responsibilities under
this Agreement is designated by the Trust by written notice to FPS in
connection with the termination of this Agreement, FPS shall promptly, upon
such termination and at the expense of the Trust, transfer all records
belonging to the Trust and shall cooperate in the transfer of such records,
duties and responsibilities.
(d) The Trust agrees to pay FPS compensation for its services and to
reimburse it for expenses at the rates and amounts as set forth in Schedule
"A" attached hereto, and as shall be set forth in any amendments to such
Schedule "A" approved by the Trust and FPS. The Trust agrees and understands
that FPS's compensation be comprised of two components, payable on a monthly
basis, as follows:
(i) a fixed fee for each Series, together with an asset based
fee which the Trust hereby authorizes FPS to collect by debiting the Trust's
custody account for invoices which are rendered for the services performed
for the applicable function. The invoices for the services performed will
be sent to the Trust after such debiting with the indication that payment
has been made; and
(ii) reimbursement of any out-of-pocket expenses paid by FPS on
behalf of the Trust, which out-of-pocket expenses will be billed to the Trust
within the first ten calendar days of the month following the month in which
such out-of-pocket expenses were incurred. The Trust agrees to reimburse FPS
for such expenses within ten calendar days of receipt of such xxxx.
For the purpose of determining fees payable to FPS, the value of a Series'
net assets shall be computed at the times and in the manner specified in the
Trust's Prospectus and Statement of Additional Information then in effect.
During the term of this Agreement, should the Trust seek services or
functions in addition to those stated, a written amendment to this Agreement
specifying the additional services and corresponding compensation shall be
executed by both FPS and the Trust.
GENERAL PROVISIONS
Section 4.
(a) FPS, its directors, officers, employees, shareholders and agents
shall only be liable for any error of judgment or mistake of law or for any
loss suffered by the Trust in connection with the performance of this
Agreement that result from willful misfeasance, bad faith, gross negligence
or reckless disregard on the part of FPS in the performance of its
obligations and duties under this Agreement.
(b) Any person, even though a director, officer, employee, shareholder
or agent of FPS, who may be or become an officer, director, employee or
agent of the Trust, shall be deemed when rendering services to such entity
or acting on any business of such entity (other than services or business
in connection with FPS's duties under the Agreement), to be rendering such
services to or acting solely for the Trust and not as a director, officer,
employee, shareholder or agent of, or under the control or direction of FPS
even though such person may receive compensation from FPS.
(c) Notwithstanding any other provision of this Agreement, the Trust
shall indemnify and hold harmless FPS, its directors, officers, employees,
shareholders and agents from and against any and all claims, demands,
expenses and liabilities (whether with or without basis in fact or law) of
any and every nature which FPS may sustain or incur or which may be asserted
against FPS by any person by reason of, or as a result of (i) any action
taken or omitted to be taken by FPS in good faith, (ii) any action taken
or omitted to be taken by FPS in good faith in reliance upon any certificate,
instrument, order or stock certificate or other document reasonably believed
by FPS to be genuine and signed, countersigned or executed by any duly
authorized person, upon the oral or written instruction of an authorized
person of the Trust or upon the opinion of legal counsel to the Trust; or
(iii) any action taken in good faith or omitted to be taken by FPS in
connection with its appointment in reliance upon any law, act, regulation or
interpretation of the same even though the same may thereafter have been
altered, changed, amended or repealed. Indemnification under this
subparagraph shall not apply, however, to actions or omissions of FPS or its
directors, officers, employees, shareholders or agents in cases of its or
their willful misfeasance, bad faith, gross negligence or reckless disregard
of its or their duties hereunder.
If a claim is made against FPS as to which FPS may seek indemnity under
this Section, FPS shall notify the Trust promptly after any written assertion
of such claim threatening to institute an action or proceeding with respect
thereto and shall notify the Trust promptly of any action commenced against
FPS within ten (10) days after FPS shall have been served with a summons or
other legal process, giving information as to the nature and basis of the
claim. Failure to notify the Trust shall not, however, relieve the Trust
from any liability which it may have on account of the indemnity under this
Section 4(c) if the Trust has not been prejudiced in any material respect by
such failure.
The Trust and FPS shall cooperate in the control of the defense of any
action, suit or proceeding in which FPS is involved and for which indemnity
is being provided by the Trust to FPS. The Trust may negotiate the settlement
of any action, suit or proceeding subject to FPS's approval, which shall not
be unreasonably withheld. FPS shall have the right, but not the obligation,
to participate in the defense or settlement of a claim or action, with its
own counsel, but any costs or expenses incurred by FPS in connection with,
or as a result of , such participation will be borne solely by FPS.
FPS shall have the right to participate in the defense of an action or
proceeding and to retain its own counsel, and the reasonable fees and expenses
of such counsel shall be borne by the Trust (which shall pay such fees, costs
and expenses at least quarterly) if:
(i) FPS has received an opinion of counsel stating that the use
of counsel chosen by the Trust to represent FPS would present such counsel
with a conflict of interest;
(ii) the defendants in, or targets of, any such action or
proceeding include both FPS and the Trust, and legal counsel to FPS shall
have reasonably concluded that there are legal defenses available to it which
are different from or additional to those available to the Trust or which
may be adverse to or inconsistent with defenses available to the Trust (in
which case the Trust shall not have the right to direct the defense of such
action on behalf of FPS); or
(iii) the Trust shall authorize FPS to employ separate counsel
at the expense of the Trust. Notwithstanding anything to the contrary herein,
it is understood that the Trust shall not, in connection with any action,
suit or proceeding or related action, suit or proceeding, be liable under
this Agreement for the fees and expenses of more than one firm.
(d) The terms of this Section 4 shall survive the termination of this
Agreement.
Section 5. This Agreement may be amended from time to time by a
supplemental agreement executed by the Trust and FPS.
Section 6. Except as otherwise provided in this Agreement, any notice or
other communication required by or permitted to be given in connection with
this Agreement shall be in writing, and shall be delivered in person or sent
by first class mail, postage prepaid, to the respective parties as follows:
If to the Trust: FPS:
The Bjurman Funds FPS Services, Inc.
10100 Santa Xxxxxxx Boulevard 0000 Xxxxxxx Xxxxx, X.X. Xxx 00000
Xxx Xxxxxxx, XX 00000-0000 King of Xxxxxxx, XX 00000-0000
Attn: G. Xxxxxx Xxxxxxx, Co-President Attn: Xxxxxxx X. Xxxxx, President
O. Xxxxxx Xxxxx, III, Co-President
Section 7. The Trust represents and warrants to FPS that the execution
and delivery of this Agreement by the undersigned officers of the Trust has
been duly and validly authorized by resolution of the Board of Trustees of
the Trust.
Section 8. This Agreement may be executed in 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.
Section 9. This Agreement shall extend to and shall be binding upon the
Parties and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Trust without the written
consent of FPS or by FPS without the written consent of the Trust, authorized
or approved by a resolution of their respective Board of Trustees.
Section 10. This Agreement shall be governed by the laws of the State of
California and the venue of any action arising under this Agreement shall be
Xxxxxxxxxx County, Commonwealth of Pennsylvania.
Section 11. No provision of this Agreement may be amended or modified,
in any manner except in writing, properly authorized and executed by FPS and
the Trust.
Section 12. If any part, term or provision of this Agreement is held by
any court to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be
affected, and the rights and obligations of the parties shall be construed
and enforced as if the Agreement did not contain the particular part, term
or provision held to be illegal or invalid provided that the basic Agreement
is not thereby substantially impaired.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement,
consisting in its entirety of six typewritten pages, together with Schedules
"A" and "B" to be signed by their duly authorized officers, as of the day and
year first above written.
The Bjurman Funds FPS Services, Inc.
/s/ G. Andrew Bjruman /s/ Xxxxxxx X. Xxxxx
By: G. Xxxxxx Xxxxxxx, Co-President By: Xxxxxxx X. Xxxxx, President
/s/ O. Xxxxxx Xxxxx, III
By: O. Xxxxxx Xxxxx, III, Co-President
Schedule "A"
CUSTODY AGENCY AND ADMINISTRATION FEE SCHEDULE
FOR
THE BJURMAN FUNDS
I. Domestic Securities and ADRs: (1/12th payable monthly)
.0002 On the First $ 50 Million of Average Net Assets
.00015 On the Next $150 Million of Average Net Assets
.000125 Over $200 Million of Average Net Assets
Minimum monthly fee is $500 per separate series of shares.
II. Custody Domestic Securities Transactions Charge: (billed monthly)
Book Entry DTC, Federal Book Entry, PTC. . . . . $12.00
Physical Securities, Physical GNMA's . . . . . . $20.00
RIC's. . . . $24.50
P & I Paydowns . . . . $ 7.00
Options/Futures. . . . . . . . . . . . . . . . . $20.00
Savings Account. . . . . . . . . . . . . . . . . $ 3.00
Wires. . . . $ 7.00
Check Request. . . . . . . . . . . . . . . . . . $ 6.00
A transaction includes buys, sells, maturities or free security movements.
III. When Issued, Securities Lending, Index Futures, Forward Contracts
Should any of these investment vehicles require a separate segregated
custody account, a fee of $250 per account per month will apply.
IV. Custody Miscellaneous Fees
Administrative fees incurred in certain local markets will be passed onto
the customer with a detailed description of the fees. Fees include income
collection, corporate action handling, funds transfer, special local taxes,
stamp duties, registration fees, over drafts, messenger and courier services
and other out-of-pocket expenses.
V. Additional Services
To the extent the Trust commences using investment techniques such as
Security Lending, Short Sales, Interest Rate Swaps, Futures, Leveraging,
Precious Metals, Reverse Repurchase Agreements and foreign securities,
additional fees will apply.
Activities of a non-recurring nature such as fund consolidations,
mergers, or reorganizations will be subject to negotiation. Any enhanced
services, programming requests or reports will be quoted upon request.
Schedule "B"
Identification of Series
Below are listed the Series to which services under this Agreement are to be
performed as of the Execution Date of this Agreement:
"The Bjurman Funds"
1. Bjurman Micro-Cap Fund
This Schedule "B" may be amended from time to time by agreement of the
Parties.
