Exhibit 9(b)
FORM OF
SUB-ADMINISTRATION AGREEMENT
THIS SUB-ADMINISTRATION AGREEMENT, dated as of this day of , 1998, the
"Agreement"), between FIRST DATA INVESTOR SERVICES GROUP, INC., a Massachusetts
corporation ("Investor Services Group"), and SAGE ADVISORS, INC., a Delaware
corporation (the "Company").
WHEREAS, Sage Life Investment Trust (the "Trust") and the Company have
entered into a management agreement pursuant to which the Company has agreed to
provide certain administrative services to the Trust; and
WHEREAS, the Company desires to retain Investor Services Group to
render certain sub-administrative services with respect to each investment
portfolio of the Trust managed by the Company listed in Schedule A hereto, as
the same may be amended from time to time by the parties hereto (collectively,
the "Portfolios"), and Investor Services Group is willing to render such
services;
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
Article 1 Definitions.
1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of the Trust as the same may be amended
from time to time.
(b) "Authorized Person" shall be deemed to include (i) any
officer of the Company; or (ii) any person, whether or not such person
is an officer or employee of the Company, duly authorized to give Oral
Instructions or Written Instructions on behalf of the Company as
indicated in writing to Investor Services Group from time to time.
(c) "Board Members" shall mean the Directors or Trustees of
the governing body of the Trust, as the case may be.
(d) "Board of Directors" shall mean the Board of Directors or
Board of Trustees of the Trust, as the case may be.
(e) "Commission" shall mean the Securities and Exchange
Commission.
(f) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Trust may from time to time
deposit, or cause to be deposited or held under the name or account of
such a custodian pursuant to a Custody Agreement.
(g) "1933 Act" shall mean the Securities Act of 1933 and the
rules and regulations promulgated thereunder, all as amended from time to time.
(h) "1940 Act" shall mean the Investment Company Act of 1940
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(i) "Oral Instructions" shall mean instructions, other than
Written Instructions, actually received by Investor Services Group from
a person reasonably believed by Investor Services Group to be an
Authorized Person.
(j) "Portfolio" shall mean each separate series of shares
offered by the Trust representing interests in a separate portfolio of
securities and other assets.
(k) "Prospectus" shall mean the most recently dated Trust
Prospectus and Statement of Additional Information, including any
amendments and supplements thereto if any, which has become effective
under the 1933 Act and the 1940 Act.
(l) "Shares" refers collectively to such shares of capital
stock or beneficial interest, as the case may be, or class thereof, of
each respective Portfolio of the Trust as may be issued from time to
time.
(m) "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Trust.
(n) "Written Instructions" shall mean a written communication
signed by a person reasonably believed by Investor Services Group to be
an Authorized Person and actually received by Investor Services Group.
Written Instructions shall include manually executed originals and
authorized electronic transmissions, including telefacsimile of a
manually executed original or other process.
Article 2 Appointment of Investor Services Group.
The Company hereby appoints Investor Services Group to act as
Sub-Administrator of the Trust on the terms set forth in this Agreement.
Investor Services Group accepts such appointment and agrees to render the
services herein set forth for the compensation herein provided.
Article 3 Duties of Investor Services Group.
3.1 Investor Services Group shall be responsible for the following:
performing the customary services of a sub-administrator, including corporate
secretarial, treasury and blue sky services, and fund accounting agent for the
Trust, as more fully described in the written schedule of Duties of Investor
Services Group annexed hereto as Schedule B and incorporated herein, and subject
to the supervision and direction of the Company.
3.2 In performing its duties under this Agreement, Investor Services
Group: (a) will act in accordance with the Articles of Incorporation, By-Laws,
Prospectuses and with the Oral Instructions and Written Instructions of the
Company and will conform to and comply with the requirements of the 1940 Act and
all other applicable federal or state laws and regulations; and (b) will consult
with legal counsel to the Trust, as necessary and appropriate. Furthermore,
Investor Services Group shall not have or be required to have any authority to
supervise the investment or reinvestment of the securities or other properties
which comprise the assets of the Trust or any of its Portfolios and shall not
provide any investment advisory services to the Trust or any of its Portfolios.
3.3 In addition to the duties set forth herein, Investor Services Group
shall perform such other duties and functions, and shall be paid such amounts
therefor, as may from time to time be agreed upon in writing between the Company
and Investor Services Group.
Article 4 Recordkeeping and Other Information.
4.1 Investor Services Group shall create and maintain all records
required of it pursuant to its duties hereunder and as set forth in Schedule B
in accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act. Such records shall be maintained by
Investor Services Group for the periods and in the places required by Rule 31a-2
under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act, Investor
Services Group agrees that all such records prepared or maintained by Investor
Services Group relating to the services to be performed by Investor Services
Group hereunder are the property of the Trust and will be preserved, maintained
and made available in accordance with Section 31 and rules promulgated by the
SEC thereunder, and will be surrendered promptly to the Trust on and in
accordance with the Company's request.
Article 5 Instructions.
5.1 Investor Services Group will have no liability when acting upon
Written or Oral Instructions reasonably believed to have been executed or orally
communicated by an Authorized Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from the Company.
5.2 At any time, Investor Services Group may request Written
Instructions from the Company and may seek advice from legal counsel for the
Trust, or its own legal counsel, with respect to any matter arising in
connection with this Agreement; provided, however, that Investor Services Group
shall not incur any legal expenses on behalf of the Trust without the Company's
consent. Investor Services Group shall not be liable for any action taken or not
taken or suffered by it in good faith in accordance with such Written
Instructions or in accordance with the opinion of counsel for the Trust or for
Investor Services Group. Written Instructions requested by Investor Services
Group will be provided by the Company within a reasonable period of time.
5.3 Investor Services Group, its officers, agents or employees, shall
accept Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Company only if said representative is
an Authorized Person. The Company agrees that all Oral Instructions shall be
followed within one business day by confirming Written Instructions, and that
the Company's failure to so confirm shall not impair in any respect Investor
Services Group's right to rely on Oral Instructions.
Article 6 Compensation.
6.1 Investor Services Group will from time to time employ or associate
with itself such person or persons as Investor Services Group may believe to be
particularly suited to assist it in performing services under this Agreement.
Such person or persons may be officers and employees who are employed by both
Investor Services Group and the Company. The compensation of such person or
persons shall be paid by Investor Services Group and no obligation shall be
incurred on behalf of the Company in such respect.
6.2 Investor Services Group shall not be required to pay any of the
following expenses incurred by the Company or the Trust: membership dues in the
Investment Company Institute or any similar organization; investment advisory
expenses; costs of printing and mailing stock certificates, prospectuses,
reports and notices; interest on borrowed money; brokerage commissions; stock
exchange listing fees; taxes and fees payable to Federal, state and other
governmental agencies; fees of Board Members of the Trust who are not affiliated
with Investor Services Group; outside auditing expenses; outside legal expenses;
Blue Sky registration or filing fees; or other expenses not specified in this
Section 6.2 which may be properly payable by the Company or the Trust. Investor
Services Group shall not be required to pay any Blue Sky registration or filing
fees unless and until it has received the amount of such fees from the Company.
6.3 The Company will compensate Investor Services Group for the
performance of its obligations hereunder in accordance with the fees set forth
in the written Fee Schedule annexed hereto as Schedule C and incorporated
herein.
6.4 In addition to those fees set forth in Section 6.3 above, the
Company agrees to pay, and will be billed separately for, out-of-pocket expenses
incurred by Investor Services Group in the performance of its duties hereunder.
Out-of-pocket expenses shall include, but shall not be limited to, the items
specified in the written schedule of out-of-pocket charges annexed hereto as
Schedule D and incorporated herein. Schedule D may be modified by written
agreement between the parties. Unspecified out-of-pocket expenses shall be
limited to those out-of-pocket expenses reasonably incurred by Investor Services
Group in the performance of its obligations hereunder.
6.5 Investor Services Group will xxxx the Company as soon as
practicable after the end of each calendar month, and said xxxxxxxx will be
detailed in accordance with the out-of-pocket schedule. The Company will pay to
Investor Services Group the amount of such billing by Federal Funds Wire within
fifteen (15) business days after the Company's receipt of said xxxx. In
addition, Investor Services Group may charge a service fee equal to the lesser
of (a) one and one half percent (1-1/2%) per month or (b) the highest interest
rate legally permitted on any past due billed amount.
6.6 Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule C a revised Fee Schedule executed and dated by the
parties hereto.
6.7 The Company acknowledges that the fees that Investor Services Group
charges the Company under this Agreement reflect the allocation of risk between
the parties, including the disclaimer of warranties in Section 9.3 and the
limitations on liability and exclusion of remedies in Section 11.2 and Article
12. Modifying the allocation of risk from what is stated here would affect the
fees that Investor Services Group charges, and in consideration of those fees,
the Company agrees to the stated allocation of risk.
Article 7 Documents.
In connection with the appointment of Investor Services Group, the
Company shall, on or before the date this Agreement goes into effect, but in any
case within a reasonable period of time for Investor Services Group to prepare
to perform its duties hereunder, deliver or caused to be delivered to Investor
Services Group the documents set forth in the written schedule of Trust
Documents annexed hereto as Schedule E.
Article 8 Fund Accounting System.
8.1 Investor Services Group shall retain title to and ownership of any
and all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents, copyrights,
trade secrets, and other related legal rights utilized by Investor Services
Group in connection with the services provided by Investor Services Group to the
Company herein (the "Investor Services Group System").
8.2 Investor Services Group hereby grants to the Company a limited
license to the Investor Services Group System for the sole and limited purpose
of having Investor Services Group provide the services contemplated hereunder
and nothing contained in this Agreement shall be construed or interpreted
otherwise and such license shall immediately terminate with the termination of
this Agreement.
8.3 In the event that the Company, including any affiliate or agent of
the Company or any third party acting on behalf of the Company is provided with
direct access to the Investor Services Group System, such direct access
capability shall be limited to direct entry to the Investor Services Group
System by means of on-line mainframe terminal entry or PC emulation of such
mainframe terminal entry and any other non-conforming method of transmission of
information to the Investor Services Group System is strictly prohibited without
the prior written consent of Investor Services Group.
Article 9 Representations and Warranties.
9.1 Investor Services Group represents and warrants to the Company
that:
(a) it is a corporation duly organized, existing and in good standing under the
laws of the Commonwealth of Massachusetts;
(b) it is empowered, licensed and registered under all
applicable federal and state laws and is empowered by its Articles of
Incorporation and By-Laws to enter into and perform under this
Agreement;
(c) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement;
(d) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement;
(f) all equipment and software provided or used by Investor
Services Group or any of its subsidiaries or divisions in connection
with rendering services to the Company under the terms of this
Agreement, include or shall include design and performance capabilities
so that prior to, during, and after December 31, 1999 (the "Millennium
Date Change") they will not malfunction, produce invalid or incorrect
results, cause an interruption in or diminish the quality of the
services provided to the Company, or abnormally cease to function due
to the Millennium Date Change. Such design and performance capabilities
shall include without limitation the ability to recognize and process
the year 2000 and thereafter and to manage and manipulate data
involving dates, including without limitation, (i) single century and
multi-century formulas and date values without resulting in the
generation of incorrect values involving such dates or causing an
abnormal ending, (ii) date data interfaces with functionalities and
data fields that indicate the century, and (iii) date-related functions
that indicate the century; and
(g) all equipment and software provided by Investor Services
Group in connection with the services rendered to the Company under the
terms of this Agreement, as amended include or shall include design and
performance capabilities so that prior to, during, and after the
calendar year 2000, they will not malfunction, produce invalid or
incorrect results, or abnormally cease to function due solely to the
year 2000 date change. Such design and performance capabilities shall
include without limitation the ability to recognize the century and to
manage ad manipulate data involving dates, including single century and
multi-century formulas and date values, without resulting in the
generation of incorrect values involving such dates or causing an
abnormal ending; date data interfaces with functionalitiies and data
fields that indicate the century; and date-related functions that
indicate the century.
9.2 The Company represents and warrants to Investor Services Group
that:
(a) it is duly organized, existing and in good
standing under the laws of the
jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into this Agreement;
(c) all corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to authorize
it to enter into this Agreement; and
(d) a registration statement under the 1933 Act and the 1940
Act on behalf of each of the Portfolios will be effective and remain
effective when the Trust commences offering its shares to the public.
Article 10 Indemnification.
10.1 The Company shall indemnify and hold Investor Services Group
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges, payments and liabilities
of any sort or kind which may be asserted against Investor Services Group or for
which Investor Services Group may be held to be liable in connection with this
Agreement or Investor Services Group's performance hereunder (a "Claim"), unless
such Claim resulted from a negligent act or omission to act or bad faith by
Investor Services Group in the performance of its duties hereunder.
10.2 Investor Services Group shall indemnify and hold the Company
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges, payments and liabilities
of any sort or kind which may be asserted against the Company or for which the
Company may be held to be liable in connection with the improper or unauthorized
use of the Investor Services Group System (a "Claim") provided that such Claim
resulted from a negligent act or omission to act or bad faith by Investor
Services Group in the performance of its duties hereunder.
10.3 In any case in which one party (the "Indemnifying Party") may be
asked to indemnify or hold the other party (the "Indemnified Party") harmless,
the Indemnified Party will notify the Indemnifying Party promptly after
identifying any situation which it believes presents or appears likely to
present a claim for indemnification against the Indemnifying Party although the
failure to do so shall not prevent recovery by the Indemnified Party and shall
keep the Indemnifying Party advised with respect to all developments concerning
such situation. The Indemnifying Party shall have the option to defend the
Indemnified Party against any Claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party so elects, such
defense shall be conducted by counsel chosen by the Indemnifying Party and
satisfactory to the Indemnified Party, and thereupon the Indemnifying Party
shall take over complete defense of the Claim and the Indemnified Party shall
sustain no further legal or other expenses in respect of such Claim. The
Indemnified Party will not confess any Claim or make any compromise in any case
in which the Indemnifying Party will be asked to provide indemnification, except
with the Indemnifying Party's prior written consent. The obligations of the
parties hereto under this Article 10 shall survive the termination of this
Agreement.
10.4 Any claim for indemnification under this Agreement must be made prior to
the earlier of:
(a) one year after the Indemnifying Party becomes aware of the event for which
indemnification is claimed; or
(b) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
10.5 Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 10 shall be
the Indemnified Party's sole and exclusive remedy for claims or other actions or
proceedings to which the Indemnifying Party's indemnification obligations
pursuant to this Article 10 may apply.
Article 11 Standard of Care.
11.1 Investor Services Group shall at all times act in good faith and
agrees to use its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but assumes no
responsibility for loss or damage to the Company or the Trust unless said errors
are caused by Investor Services Group's own negligence, bad faith or willful
misconduct or that of its employees.
11.2 Notwithstanding any provision in this Agreement to the contrary,
each party's cumulative liability (to the other party) for all losses, claims,
suits, controversies, breaches, or damages for any cause whatsoever (including
but not limited to those arising out of or related to this Agreement) and
regardless of the form of action or legal theory shall not exceed the lesser of
(i) $500,000 or (ii) the fees received by Investor Services Group for services
provided under this Agreement during the twelve months immediately prior to the
date of such loss or damage, plus any amounts that are recovered from any
liability insurance on which such party makes a claim. Each party understands
the limitation on the other party's damages to be a reasonable allocation of
risk and each party expressly consents with respect to such allocation of risk.
In allocating risk under the Agreement, the parties agree that the damage
limitation set forth above shall apply to any alternative remedy ordered by a
court in the event such court determines that sole and exclusive remedy provided
for in the Agreement fails of its essential purpose.
11.3 Neither party may assert any cause of action against the other
party under this Agreement that accrued more than two (2) years prior to the
filing of the suit (or commencement of arbitration proceedings) alleging such
cause of action.
11.4 Each party shall have the duty to mitigate damages for which the
other party may become responsible.
11.5 Without in any way limiting the foregoing, in the event Investor
Services Group shall provide Blue Sky services to the Company or the Trust,
Investor Services Group shall have no liability for failing to file on a timely
basis any material to be provided by the Company or its designee that it has not
received on a timely basis from the Company or its designee, nor shall Investor
Services Group have any responsibility to review the accuracy or adequacy of
materials it receives from the Company or its designee for filing or bear any
liability arising out of the timely filing of such materials; nor shall Investor
Services Group have any liability for monetary damages for the sale of
securities in jurisdictions where Shares are not properly registered, or in
jurisdictions where Shares are sold in excess of the lawfully registered amount
unless such failure of proper registration or excess sales is due to the willful
misfeasance, bad faith or negligence of Investor Services Group. Investor
Services Group shall not be liable for any errors which result from inaccurate
or inadequate information reported to Investor Services Group directly or
indirectly from the Trust's transfer agent. Investor Services Group shall be
under no obligation to investigate or confirm the accuracy or adequacy of any
information provided to Investor Services Group by the Trust's transfer agent.
Article 12 Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR LOST PROFITS, EXEMPLARY,
PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
Article 13 Term and Termination.
13.1 This Agreement shall be effective on the date first written above
and shall continue for a period of five (5) years (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of three (3) years ("Renewal Terms")
each, unless the Company or Investor Services Group provides written notice to
the other of its intent not to renew. Such notice must be received not less than
ninety (90) days and not more than one-hundred eighty (180) days prior to the
expiration of the Initial Term or the then current Renewal Term.
13.3 In the event a termination notice is given by the Company, all
expenses associated with movement of records and materials and conversion
thereof to a successor sub-administrator will be borne by the Company.
13.4 If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other party (the
"Non-Defaulting Party") may give written notice thereof to the Defaulting Party,
and if such material breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting Party may terminate
this Agreement by giving thirty (30) days written notice of such termination to
the Defaulting Party. If Investor Services Group is the Non-Defaulting Party,
its termination of this Agreement shall not constitute a waiver of any other
rights or remedies of Investor Services Group with respect to services performed
prior to such termination of rights of Investor Services Group to be reimbursed
for out-of-pocket expenses. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against the Defaulting
Party.
13.5 Notwithstanding anything contained in this Agreement to the
contrary, should the Company desire to move any of the services provided by
Investor Services Group hereunder to a successor service provider prior to the
expiration of the then current Initial or Renewal Term, or should the Company or
the Trust or any of its or their affiliates take any action which results in
Investor Services Group ceasing to provide administration services to the
Company or the Trust prior to the expiration of the then current Initial or
Renewal Term, Investor Services Group shall make a good faith effort to
facilitate the conversion on such prior date, however, there can be no guarantee
that Investor Services Group will be able to facilitate a conversion of services
on such prior date. In connection with the foregoing, should services be
converted to a successor service provider, or should the Company or the Trust or
any of its or their affiliates take any action which results in Investor
Services Group ceasing to provide administration services to the Company or the
Trust prior to the expiration of the then current Initial or Renewal Term, the
payment of fees to Investor Services Group as set forth herein shall be
accelerated to a date prior to the conversion or termination of services and
calculated as if the services had remained with Investor Services Group until
the expiration of the then current Initial or Renewal Term and calculated at the
asset and/or Shareholder account levels, as the case may be, on the date notice
of termination was given to Investor Services Group.
Article 14 Additional Portfolios
14.1 In the event that the Trust establishes one or more Portfolios in
addition to those identified in Schedule A, with respect to which the Company
desires to have Investor Services Group render services as sub-administrator
under the terms hereof, the Company shall so notify Investor Services Group in
writing, and if Investor Services Group agrees in writing to provide such
services, Schedule A shall be amended to include such additional Portfolios.
Article 15 Confidentiality.
15.1 The parties agree that the Proprietary Information (defined below)
and the contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensors. The
Company and Investor Services Group shall exercise at least the same degree of
care, but not less than reasonable care, to safeguard the confidentiality of the
Confidential Information of the other as it would exercise to protect its own
confidential information of a similar nature. The Company and Investor Services
Group shall not duplicate, sell or disclose to others the Confidential
Information of the other, in whole or in part, without the prior written
permission of the other party. The Company and Investor Services Group may,
however, disclose Confidential Information to their respective parent
corporation, their respective affiliates, their subsidiaries and affiliated
companies and employees, provided that each shall use reasonable efforts to
ensure that the Confidential Information is not duplicated or disclosed in
breach of this Agreement. The Company and Investor Services Group may also
disclose the Confidential Information to independent contractors, auditors, and
professional advisors, provided they first agree in writing to be bound by the
confidentiality obligations substantially similar to this Section 15.1.
Notwithstanding the previous sentence, in no event shall either the Company or
Investor Services Group disclose the Confidential Information to any competitor
of the other without specific, prior written consent.
15.2 Proprietary Information means:
(a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finance, operations, customer relationships, customer profiles, sales
estimates, business plans, and internal performance results relating to
the past, present or future business activities of the Company or
Investor Services Group, their respective subsidiaries and affiliated
companies and the customers, clients and suppliers of any of them;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Company or
Investor Services Group a competitive advantage over its competitors;
and
(c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, show-how and trade
secrets, whether or not patentable or copyrightable.
15.3 Confidential Information includes, without limitation, all
documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either party
which now exist or come into the control or possession of the other.
15.4 The obligations of confidentiality and restriction on use herein
shall not apply to any Confidential Information that a party proves:
(a) Was in the public domain prior to the date of this
Agreement or subsequently came into the public domain through no fault of such
party; or
(b) Was lawfully received by the party from a third party free
of any obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to
receipt thereof, directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or
administrative proceeding after all reasonable legal remedies for maintaining
such information in confidence have been exhausted including, but not limited
to, giving the other party as much advance notice of the possibility of such
disclosure as practical so the other party may attempt to stop such disclosure
or obtain a protective order concerning such disclosure; or
(e) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the Confidential
Information disclosed under this Agreement.
Article 16 Force Majeure.
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default or delay
is caused, directly or indirectly, by (i) fire, flood, elements of nature or
other acts of God; (ii) any outbreak or escalation of hostilities, war, riots or
civil disorders in any country, (iii) any act or omission of the other party or
any governmental authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the party's power to satisfy); or
(v) nonperformance by a third party or any similar cause beyond the reasonable
control of such party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In any such event, the non-performing
party shall be excused from any further performance and observance of the
obligations so affected only for as long as such circumstances prevail and such
party continues to use commercially reasonable efforts to recommence performance
or observance as soon as practicable.
Article 17 Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that
Investor Services Group may, in its sole discretion, assign all its right, title
and interest in this Agreement to an affiliate, parent or subsidiary, or to the
purchaser of substantially all of its business. Investor Services Group may, in
its sole discretion and subject to the supervision of the Company, engage
subcontractors to perform any of the obligations contained in this Agreement to
be performed by Investor Services Group.
Article 18 Arbitration.
18.1 Any claim or controversy arising out of or relating to this
Agreement, or breach hereof, shall be settled by arbitration administered by the
American Arbitration Association in Boston, Massachusetts in accordance with its
applicable rules, except that the Federal Rules of Evidence and the Federal
Rules of Civil Procedure with respect to the discovery process shall apply.
18.2 The parties hereby agree that judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
18.3 The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law provisions
in this Agreement, the parties agree that the Federal Arbitration Act shall
govern and control with respect to the provisions of this Article 18.
Article 19 Notice.
Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Company or Investor Services Group, shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Company:
Attention: __________________
To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to Investor Services Group's General Counsel
Article 20 Governing Law/Venue.
The laws of the Commonwealth of Massachusetts, excluding the laws on
conflicts of laws, shall govern the interpretation, validity, and enforcement of
this Agreement. The terms of this Agreement shall be subject to and interpreted
in accordance with the 1940 Act to the extent applicable. All actions arising
from or related to this Agreement shall be brought in the state and federal
courts sitting in the City of Boston, and Investor Services Group and the
Company hereby submit themselves to the exclusive jurisdiction of those courts.
Article 21 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
Article 22 Captions.
The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
Article 23 Publicity.
Neither Investor Services Group nor the Company shall release or
publish news releases, public announcements, advertising or other publicity
relating to this Agreement or to the transactions contemplated by it without the
prior review and written approval of the other party; provided, however, that
either party may make such disclosures as are required by legal, accounting or
regulatory requirements after making reasonable efforts in the circumstances to
consult in advance with the other party.
Article 24 Relationship of Parties/Non-Solicitation.
24.1 The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
24.2 During the term of this Agreement and for one (1) year afterward,
the Company shall not recruit, solicit, employ or engage, for the Company or
others, Investor Services Group's employees.
Article 25 Entire Agreement; Severability.
25.1 This Agreement, including Schedules, Addenda, and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such writing shall be
effective as against Investor Services Group unless said writing is executed by
a Senior Vice President, Executive Vice President, or President of Investor
Services Group. A party's waiver of a breach of any term or condition in the
Agreement shall not be deemed a waiver of any subsequent breach of the same or
another term or condition.
25.2 The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and delivered by their duly authorized officers as of the date
first written above.
SAGE ADVISORS, INC.
By:
Name:
Title:
FIRST DATA INVESTOR SERVICES GROUP, INC.
By:
Name:
Title:
SCHEDULE A
LIST OF PORTFOLIOS
SCHEDULE B
DUTIES OF INVESTOR SERVICES GROUP
(a) Maintaining office facilities (which may be in the offices of
Investor Services Group or a corporate affiliate) and furnishing corporate
officers for the Trust;
(b) Furnishing data processing services, clerical services, and
executive and administrative services and standard stationery and office
supplies;
(c) Performing the following fund accounting and bookkeeping services
(including the maintenance of such accounts, books and records of the Trust as
may be required by Section 31(a) of the 1940 Act):
o Daily, Weekly, and Monthly Reporting
o Portfolio and General Ledger Accounting
o Daily Valuation of all Portfolio Securities
o Daily Valuation and NAV Calculation
o Comparison of NAV to market movement
o Review research of price tolerance/fluctuation report to
market movements and events
o Research of items appearing on the price exception report
o Weekly cost monitoring along with market-to-market
valuations in accordance with Rule
2a-7
o Security trade processing
o Daily cash and position reconciliation with the custodian bank
o Daily updating of price and distribution rate
information to the Transfer
Agent/Insurance Agent
o Daily support and report delivery to Portfolio Management
o Daily calculation of Portfolio adviser fees and waivers
o Daily calculation of distribution rates
o Daily investable cash call
o Monitor and research aged receivables
o Collect aged income items and perform reclaims
o Update NASDAQ reporting
o Daily maintenance of each Portfolio's general ledger
including expense accruals
o Daily NAV per share notification to other vendors as required
o Calculation of 30-day SEC yields and total returns
o Preparation of month-end reconciliation package
o Monthly reconciliation of Portfolio expense records
o Application of monthly pay down gain/loss
o Preparation of all annual and semi-annual audit work papers
(d) Performing all functions ordinarily performed by the office of a
corporate treasurer, and furnishing the services and facilities ordinarily
incident thereto, as follows:
o Expense Accrual Monitoring
o Determination of Dividends
o Preparation of all necessary compliance materials for review
by the Board, e.g., Rules
2a-7,10f-3, 17a-7, 17e-1 and 144A
o Tax and Financial Counsel
o Creation of expense pro formas for new Portfolios/classes
o Reporting to investment company reporting agencies
(i.e., Lipper)
o Compliance Testing including Section 817(h)
(daily, weekly or monthly)
(e) Preparing reports to the Trust's Shareholders and the SEC
including, but not necessarily limited to, Annual Reports and Semi-Annual
Reports on Form N-SAR;
(f) Preparing and filing the Trust's tax returns and providing
shareholder tax information to the Trust's transfer agent;
(g) Assisting the Adviser, at the Adviser's request, in monitoring and
developing compliance procedures for the Trust which will include, among other
matters, procedures to assist the Adviser in monitoring compliance with each
Portfolio's investment objective, policies, restrictions, tax matters and
applicable laws and regulations, including, but not limited to, Subchapter M of
the Internal Revenue Code of 1986, as amended (the "Code") and Section 17(h) of
the Code and regulations thereunder;
(h) Performing "Blue Sky" compliance functions, as follows:
o Effecting and maintaining, as the case may be, the registration of Shares of
the Trust for sale under the securities laws of the jurisdictions listed in the
Written Instructions of the Company, which instructions will include the amount
of Shares to be registered as well as the warning threshold to be maintained.
Any Written Instructions not received at least 45 days prior to the date the
Trust intends to offer or sell its Shares cannot be guaranteed a timely
notification to the states. In addition, Investor Services Group shall not be
responsible for providing to any other service provider of the Trust a list of
the states in which the Trust may offer and sell its Shares.
o Filing with each appropriate jurisdiction the appropriate
materials relating to the Trust. The Company shall be
responsible for providing such materials to Investor Services
Group, and Investor Services Group shall make such filings
promptly after receiving such materials.
o Providing to the Company quarterly reports of sales activity
in each jurisdiction in accordance with the Written
Instructions of the Company. Sales will be reported by
shareholder residence. NSCC trades and order clearance will be
reported by the state provided by the dealer at the point of
sale. Trades by omnibus accounts will be reported by trustee
state of residence in accordance with the Written Instructions
of the Company outlining the entities which are permitted to
maintain omnibus positions with the Trust.
o In the event sales of Shares in a particular jurisdiction
reach or exceed the warning levels provided in the Written
Instructions of the Company, Investor Services Group will
promptly notify the Company with a recommendation of the
amount of Shares to be registered in such jurisdiction and the
fee for such registration. Investor Services Group will not
register additional Shares in such jurisdiction unless and
until Investor Services Group shall have received Written
Instructions from the Company to do so.
(i) Performing corporate secretarial services including the following:
o Assist in maintaining corporate records and good standing status
of Trust in its state of organization
o Develop and maintain calendar of annual and quarterly board
approvals and regulatory
filings
o Prepare notice, agenda, memoranda, resolutions and background
materials for legal approvals at quarterly board meetings and
committee meetings; attend meetings; make presentations where
appropriate; prepare minutes; follow up on issues
o Provide support for one special in person board meeting per year
and written consent votes where needed
(j) Performing the following legal services:
o Prepare and file annual Post-Effective Amendment
o Prepare and file Rule 24f-2 Notice
o Review and file Form N-SAR
o Review, Edgarize and file Annual and Semi-Annual Financial Reports
o Communicate significant regulatory or legislative developments to
Trust management and directors and provide related planning
assistance where needed
o Consult with Trust management regarding portfolio compliance and
Trust corporate and regulatory issues as needed
o Maintain effective communication with outside counsel and review
legal bills of outside counsel
o Coordinate the printing and mailing process with outside
printers for all shareholder
publications
o Arrange D&O/E&O insurance and fidelity bond coverage for Trust
o Assist in monitoring Trust Code of Ethics reporting and provide
such reports to the person designated under the Trust's Code
(k) Performing, in accordance with the Written Instructions of the
Company, the following Special Legal Services in accordance with the pricing
structure listed on the Fee Schedule attached to this Agreement as Schedule C:
o Assist in managing SEC audits of Trust
o Review sales material and advertising for SEC and NASD compliance
o Assist in conversion
Coordinate time and responsibility schedules
Draft notice, agenda, memoranda, resolutions and background
materials for board
approval
o Assist in new Portfolio start-up (to the extent requested)
Coordinate time and responsibility schedules Prepare Trust
corporate documents (by-laws)
Draft/file registration statement (including investment
objectives/policies and
prospectuses)
Respond to and negotiate SEC comments
Draft notice, agenda and resolutions for organizational
meeting; attend board meeting; make presentations where
appropriate; prepare minutes and follow up on issues
o Assist in developing compliance guidelines and procedures to
improve overall compliance by Trust and service providers
o Prepare notice, agenda, memoranda and background materials for
special board meetings, make presentations where appropriate,
prepare minutes and follow up on issues
o Prepare proxy material for special meetings
(including fund merger documents)
o Prepare Post-Effective Amendments for special purposes (e.g., new
funds or classes, changes in advisory relationships, mergers,
restructurings)
o Prepare special Prospectus supplements where needed
o Assist in extraordinary non-recurring projects,
including providing consultative legal
services, e.g.,
Arrange CDSC financial programs
Prospectus simplification
Profile prospectuses
Exemptive order applications
SCHEDULE C
FEE SCHEDULE
For the services to be rendered, the facilities to be furnished and the
payments to be made by Investor Services Group, as provided for in this
Agreement, the Company will pay Investor Services Group on the first business
day of each month a fee for the previous month at the rates listed below.
Fund Administration and Legal Administration First $2,000,000 of
aggregate net assets 0.05% Next $2,000,000 to $4,000,000 0.04% Greater
than $4,000,000 0.03% Minimum of $75,000 per Portfolio per annum*
*Investor Services Group agrees to waive $20,000 of the first years'
minimum per Portfolio.
Fund Accounting Trust Assets First $50,000,000 $27,500 per Portfolio per annum
$50,000,000 to $100,000,000 $30,000 per Portfolio per annum Greater than
$100,000,000 $36,000 per Portfolio per annum
Investor Services Group shall be entitled to the following fee
for the performance of any Special Legal Services as described in
Schedule B in accordance with the Written Instructions of the
Company: $185 per hour subject to certain project caps as may be
agreed to by Investor Services Group and the Company. Services
and charges may vary based on volume.
Investor Services Group shall be entitled to collect all
out-of-pocket fees described in Schedule D.
SCHEDULE D
OUT-OF-POCKET EXPENSES
Out-of-pocket expenses include, but are not limited to, the following:
Courier services
Delivery costs of Board meetings materials and other materials to
the Trust's Board members and service providers (including
overnight or other courier services)
Telecommunictions charges (including FAX) with respect to
communications with the Trust's Board Members, officers and
service providers
Duplicating charges with respect to filings with Federal and
state authorities and Board meeting materials
Travel to and from Board meetings and other meetings with Trust
management Pricing services (or services used to determine Trust
NAV) Forms and supplies for the preparation of Board meetings and
other materials for the Trust Vendor set-up charges for Blue Sky
services Customized programming requests Blue Sky filing or
registration fees SAS 70 Cold Storage Document Retrieval Vendor
pricing comparison Manual pricing Such other expenses as are
agreed to by Investor Services Group and the Company
SCHEDULE E
TRUST DOCUMENTS
Certified copy of the Declaration of Trust of the Trust, as
amended
Certified copy of the By-laws of the Trust, as amended,
Copy of the resolution of the Board of Directors authorizing
the execution and delivery of
this Agreement
Copies of all agreements between the Trust and its service
providers.
All notices issued by the Trust with respect to the Shares in
accordance with and pursuant to the Articles of Incorporation or
By-laws of the Trust or as required by law and shall perform such
other specific duties as are set forth in the Articles of
Incorporation including the giving of notice of any special or
annual meetings of shareholders and any other notices required
thereby.
