AMENDED AND RESTATED SUB-ADMINISTRATION AGREEMENT
THIS AMENDED AND RESTATED SUB-ADMINISTRATION AGREEMENT (this
"AGREEMENT") is made as of this 17th day of June, 2008, by and between Xxxxxx
Investment Partners, Inc., a Pennsylvania business trust (the ADMINISTRATOR")
and SEI Investments Global Funds Services, a Delaware business trust (the
"SUB-ADMINISTRATOR").
WHEREAS, the Administrator and Xxxxxx Funds (the "TRUST") have entered
into an Administration Agreement (the "ADMINISTRATION AGREEMENT") pursuant to
which the Administrator will provide administrative services to the Trust; and
WHEREAS, the Administrator desires to retain the Sub-Administrator to
assist in performing certain administrative and accounting services to each of
the portfolios of the Trust, which are identified in Schedule A hereto, as such
schedule may be amended from time to time to (individually a "PORTFOLIO" and
collectively the "PORTFOLIOS") and the Sub-Administrator is willing to perform
such services on the terms and conditions set forth herein;
WHEREAS, the Administrator and the Sub-Administrator entered into a
Sub-Administration Agreement, effective as of October 1, 2001 (the "EFFECTIVE
DATE") (such Sub-Administration Agreement to be referred to herein as "ORIGINAL
SERVICES AGREEMENT");
WHEREAS, each of the Administrator and the Sub-Administrator desire to
amend and restate in its entirety the Original Services Agreement; and
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, Administrator and the Sub-Administrator hereby agree as
follows:
ARTICLE 1. RETENTION OF THE SUB-ADMINISTRATOR. Administrator hereby
retains the Sub-Administrator to furnish the Portfolios with accounting and
administrative services as set forth in Article 2 below. The Sub-Administrator
hereby accepts such employment to perform the duties set forth below. The
Sub-Administrator shall, for all purposes herein, be deemed to be an independent
contractor.
ARTICLE 2. SUB-ADMINISTRATIVE AND ACCOUNTING SERVICES. The
Sub-Administrator shall perform or supervise the performance by others of the
accounting and administrative services set forth in Schedule B hereto, and made
a part of this Agreement. The Sub-Administrator may sub-contract with third
parties to perform certain of the services to be performed by the
Sub-Administrator hereunder; provided, however, that the Sub-Administrator shall
remain principally responsible to Administrator for the acts and omissions of
such other entities. In meeting its duties hereunder, Sub-Administrator shall
have the general authority to do all acts deemed in the Sub-Administrator's good
faith belief to be necessary and proper to perform its obligations under this
Agreement.
ARTICLE 3. COMPENSATION OF THE SUB-ADMINISTRATOR. The Administrator shall pay to
the Sub-Administrator compensation at the annual rate specified in Schedule A to
this Agreement until this Agreement is terminated in accordance with Article 5.
Such compensation shall be calculated and accrued daily, and paid to the
Sub-Administrator monthly. If this Agreement becomes effective subsequent to the
first day of a month or terminates before the last day of a month, the
Sub-Administrator's compensation for that part of the month in which this
Agreement is in effect shall be prorated in a manner consistent with the
calculation of the fees as set forth above. Payment of the Sub-Administrator's
compensation for the preceding month shall be made within 30 days after receipt
of invoice. In addition, the Administrator agrees to reimburse the
Sub-Administrator for the Sub-Administrator's reasonable out of pocket expenses
in providing services hereunder.
ARTICLE 4. LIMITATION OF LIABILITY OF THE SUB-ADMINISTRATOR. The duties
of the Sub-Administrator shall be confined to those expressly set forth herein,
and no implied duties are assumed by or may be asserted against the
Sub-Administrator hereunder. The Sub-Administrator shall not be liable for any
error of judgment or mistake of law or for any loss arising out of any
investment or for any act or omission in carrying out its duties hereunder,
except a loss resulting from willful misfeasance, bad faith or gross negligence
in the performance of its duties, or by reason of reckless disregard of its
obligations and duties hereunder. (As used in this Article 4, the term
"Sub-Administrator" shall include Trustees, officers, employees and other agents
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of the Sub-Administrator as well as that entity itself.) Under no circumstances
shall the Sub-Administrator be liable to Administrator for consequential,
indirect or punitive damages.
So long as the Sub-Administrator, or its agents, acts without willful
misfeasance, bad faith or gross negligence in the performance of its duties, and
without reckless disregard of its obligations and duties hereunder,
Administrator assumes full responsibility and shall indemnify the
Sub-Administrator and hold it harmless from and against any and all actions,
suits and claims, whether groundless or otherwise, and from and against any and
all losses, damages, costs, charges, reasonable counsel fees and disbursements,
payments, expenses and liabilities (including reasonable investigation expenses)
arising directly or indirectly out of any act or omission of Sub-Administrator
in carrying out its duties hereunder. The indemnity and defense provisions set
forth herein shall indefinitely survive the termination of this Agreement.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited. In order that the indemnification provisions contained
herein shall apply, however, it is understood that if in any case the
Administrator may be asked to indemnify or hold the Sub-Administrator harmless,
the Administrator shall be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further understood that the
Sub-Administrator will use all reasonable care to identify and notify the
Administrator promptly concerning any situation which presents or appears likely
to present the probability of such a claim for indemnification against the
Administrator, but failure to do so shall not affect the rights hereunder. In no
event and under no circumstances shall either party to this Agreement be liable
to anyone, including, without limitation, the other party, for special damages
for any act or failure to act under any provision of this Agreement if advised
of the possibility thereof.
Administrator shall be entitled to participate at its own expense or,
if it so elects, to assume the defense of any suit brought to enforce any claims
subject to this indemnity provision. If Administrator elects to assume the
defense of any such claim, the defense shall be conducted by counsel chosen by
Administrator and satisfactory to the Sub-Administrator, whose approval shall
not be unreasonably withheld. In the event that Administrator elects to assume
the defense of any suit and retain counsel, the Sub-Administrator shall bear the
fees and expenses of any additional counsel retained by it. If Administrator
does not elect to assume the defense of a suit, it will reimburse the
Sub-Administrator for the fees and expenses of any counsel retained by the
Sub-Administrator.
The Sub-Administrator may apply to Administrator at any time for
instructions and may consult counsel for Administrator or its own counsel and
with accountants and other experts with respect to any matter arising in
connection with the Sub-Administrator's duties, and the Sub-Administrator shall
not be liable or accountable for any action taken or omitted by it in good faith
in accordance with such instruction or with the opinion of such counsel,
accountants or other experts.
Also, the Sub-Administrator shall be protected in acting upon any
document which it reasonably believes to be genuine and to have been signed or
presented by the proper person or persons. Nor shall the Sub-Administrator be
held to have notice of any change of authority of any officers, employee or
agent of Administrator until receipt of written notice thereof from
Administrator.
Nothing herein shall make Sub-Administrator liable for the performance
or omissions of unaffiliated third parties not under Sub-Administrator's
reasonable control such as, by way of example and not limitation, transfer
agents, custodians, investment advisers or sub-advisers, postal or delivery
services, telecommunications providers and processing and settlement services.
The Sub-Administrator may, from time to time, in accordance with
ARTICLE 2, provide to the Administrator services and products ("SPECIAL THIRD
PARTY SERVICES") from external third party sources that are telecommunication
carriers, Pricing Sources, data feed providers or other similar service
providers ("SPECIAL THIRD PARTY VENDORS"). The Administrator acknowledges and
agrees that the Special Third Party Services may include confidential and
proprietary trade secrets of the Special Third Party Vendors. Accordingly, the
Administrator shall use its best efforts to honor requests by the
Sub-Administrator and the Special Third Party Vendors to protect their
proprietary rights in their data, information and property provided, including
requests that the Administrator place copyright notices or other proprietary
legends on printed matter, print outs, tapes, disks, film or any other medium of
dissemination. The Administrator further acknowledges and agrees that all
Special Third Party Services are provided on an "AS IS WITH ALL FAULTS" basis
solely for each Portfolio's internal use in connection with the receipt of the
Services. The Administrator may use Special Third Party Services as normally
required on view-only screens and hard copy statements, reports and other
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documents necessary to support the Portfolio's investors, however the
Administrator shall not distribute any Special Third Party Services to other
third parties. THE SPECIAL THIRD PARTY VENDORS AND THE SUB-ADMINISTRATOR MAKE NO
WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR
USE, OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE SPECIAL THIRD PARTY
SERVICES. NEITHER THE SUB-ADMINISTRATOR NOR THE SPECIAL THIRD PARTY VENDORS
SHALL BE LIABLE FOR ANY DAMAGES SUFFERED BY THE ADMINISTRATOR IN THE USE OF ANY
OF THE SPECIAL THIRD PARTY SERVICES, INCLUDING, WITHOUT LIMITATION, LIABILITY
FOR ANY INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES.
ARTICLE 5. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement
shall become effective on the date set forth in Schedule A hereto and shall
remain in effect for the full duration of the Initial Term and each Renewal
Term, each as set forth in Schedule A, unless terminated in accordance with the
provisions of this Article 5. This Agreement may be terminated only: (a) by
either party at the end of the Initial Term or the end of any Renewal Term on 90
days' prior written notice; provided, however, that after such termination for
so long as the Sub-Administrator in fact continues to perform any one or more
services contemplated by this Agreement, the provisions of this Agreement,
including without limitation the provisions regarding limitation of liability
and indemnification, shall continue in full force and effect; (b) by either
party hereto on such date as is specified in written notice given by the
terminating party, in the event of a material breach of this Agreement by the
other party, provided the terminating party has notified the other party of such
material breach at least 45 days prior to the specified date of termination and
the breaching party has not remedied such breach by the specified date; or (c)
as to any Portfolio or the Trust, effective upon the liquidation of such
Portfolio or the Trust, as the case may be. For purposes of this paragraph, the
term "liquidation" shall mean a transaction in which the assets of the Trust or
a Portfolio are sold or otherwise disposed of and proceeds therefrom are
distributed in cash to the shareholders in complete liquidation of the interests
of such shareholders in the entity.
Notwithstanding the foregoing, this Agreement shall terminate
automatically upon termination of the Administration Agreement; provided,
however, that no such termination of this Agreement shall occur if and to the
extent the Administrator or any control affiliate thereof is named as, or
otherwise becomes, the successor administrator to the Trust. If this Agreement
is terminated pursuant to this paragraph, and the Administrator proposes or
causes, directly or indirectly, the Trust to retain a third party other than the
Sub-Administrator to serve as successor administrator or sub-administrator to
the Trust, Sub-Administrator will be entitled to a one time cash payment equal
to the net present value of the profits Sub-Administrator would have earned
during the remainder of the then-current term of the contract based on the fee
rate set forth in Schedule A hereto applied to the average daily net assets of
the Trust during the six month period immediately preceding such termination.
ARTICLE 6. ACTIVITIES OF THE SUB-ADMINISTRATOR. The services of the
Sub-Administrator rendered to Administrator are not to be deemed to be
exclusive. The Sub-Administrator is free to render such services to others and
to have other businesses and interests.
ARTICLE 7. CONFIDENTIALITY. The Sub-Administrator agrees on behalf of
itself and its employees to treat confidentially all records and other
information relative to the Administrator and the Trust and its shareholders
received by the Sub-Administrator in connection with this Agreement, including
any non-public personal information as defined in Regulation S-P, and that it
shall not use or disclose any such information except for the purpose of
carrying out the terms of this Agreement; provided, however, that
Sub-Administrator may disclose such information as required by law or after
prior notification to and approval in writing by the Administrator or the Trust,
which approval may not be withheld where the Sub-Administrator may be exposed to
civil or criminal contempt proceedings or penalties for failure to comply.
ARTICLE 8. CERTAIN RECORDS. The Sub-Administrator shall maintain
customary records in connection with its duties as specified in this Agreement.
Any records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by the
Sub-Administrator on behalf of the Trust shall be prepared and maintained at the
expense of the Sub-Administrator, but shall be the property of the Trust and
will be made available to or surrendered promptly to Administrator or the Trust
on request.
In case of any request or demand for the inspection of such records by
another party, the Sub-Administrator shall notify the Administrator and follow
the Administrator's instructions as to permitting or refusing such inspection;
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provided that the Sub-Administrator may exhibit such records to any person in
any case where it is advised by its counsel that it may be held liable for
failure to do so, unless (in cases involving potential exposure only to civil
liability) the Administrator has agreed to indemnify the Sub-Administrator
against such liability.
ARTICLE 9. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS. The
Sub-Administrator undertakes to comply in all material respects with applicable
requirements of the 1933 Act, the 1934 Act, the 1940 Act and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
duties to be performed by the Sub-Administrator hereunder.
ARTICLE 10. REPRESENTATIONS OF THE ADMINISTRATOR. The Administrator
certifies to the Sub-Administrator that this Agreement has been duly authorized
by the Administrator and, when executed and delivered by the Administrator, will
constitute a legal, valid and binding obligation of the Administrator,
enforceable against the Administrator 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.
ARTICLE 11. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes
the entire agreement between the parties hereto and supersedes any prior
agreement, draft or proposal with respect to the subject matter hereof. This
Agreement or any part hereof may be changed or waived only by an instrument in
writing signed by the party against which enforcement of such change or waiver
is sought.
ARTICLE 12. ASSIGNMENT. The Agreement shall not be assignable, by
operation of law or otherwise, by either party without the prior written consent
of the other party, except that, upon reasonable notice to the other party,
either party may assign this Agreement to a wholly-owned subsidiary or affiliate
under common control with the assigning party without the consent of the other
party hereto, provided that such subsidiary or affiliate agrees in advance and
in writing to be bound by the terms, conditions and provisions of this Agreement
and remains a wholly-owned subsidiary or affiliate of the original party to this
Agreement throughout the term hereof. Subject to the foregoing, all of the
terms, conditions and provisions of this Agreement shall be binding upon and
shall inure to the benefit of each party's successors and permitted assigns. Any
assignment, delegation, or transfer in violation of this provision shall be void
and without legal effect.
ARTICLE 13. WAIVER. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit thereof by written
instrument executed by such party. No failure of either party hereto to exercise
any power or right granted hereunder, or to insist upon strict compliance with
any obligation hereunder, and no custom or practice of the parties with regard
to the terms of performance hereof, will constitute a waiver of the rights of
such party to demand full and exact compliance with the terms of this Agreement.
ARTICLE 14. NOTICE. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, federal express (or substantially similar delivery service),
postage prepaid, addressed by the party giving notice to the other party at the
last address furnished by the other party to the party giving notice: if to
Administrator, at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000;
and if to the Sub-Administrator at Xxx Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx,
00000.
ARTICLE 15. FORCE MAJEURE. No breach of any obligation of a party to
this Agreement will constitute an event of default or breach to the extent it
arises out of a cause, existing or future, that is beyond the control and
without negligence of the party otherwise chargeable with breach or default,
including without limitation: work action or strike; lockout or other labor
dispute; flood; war; riot; theft; earthquake or natural disaster. Either party
desiring to rely upon any of the foregoing as an excuse for default or breach
will, when the cause arises, give to the other party prompt notice of the facts
which constitute such cause; and, when the cause ceases to exist, give prompt
notice thereof to the other party.
ARTICLE 16. EQUIPMENT FAILURES. In the event of equipment failures
beyond the Sub-Administrator's control, the Sub-Administrator shall, at no
additional expense to Administrator, take reasonable and prompt steps to
minimize service interruptions but shall have no liability with respect thereto.
The Administrator shall develop and maintain a plan for recovery from equipment
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failures which may include contractual arrangements with appropriate parties
making reasonable provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available.
ARTICLE 17. DEFINITIONS OF CERTAIN TERMS. The terms "interested person"
and "affiliated person," when used in this Agreement, shall have the respective
meanings specified in the 1940 Act and the rules and regulations thereunder,
subject to such exemptions as may be granted by the Securities and Exchange
Commission.
ARTICLE 18. HEADINGS. All Article headings contained in this Agreement
are for convenience of reference only, do not form a part of this Agreement and
will not affect in any way the meaning or interpretation of this Agreement.
Words used herein, regardless of the number and gender specifically used, will
be deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine, or neuter, as the contract requires.
ARTICLE 19. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Delaware and the applicable provisions
of the 1940 Act. To the extent that the applicable laws of the State of
Delaware, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control.
ARTICLE 20. MULTIPLE ORIGINALS. 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.
ARTICLE 21. BINDING AGREEMENT. This Agreement, and the rights and
obligations of the parties hereunder, shall be binding on, and inure to the
benefit of, the parties and their respective successors and assigns.
ARTICLE 22. SEVERABILITY. If any part, term or provision of this
Agreement is held 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.
ARTICLE 23. SERVICE LEVEL AGREEMENT. The Sub-Administrator shall
provide the services set forth on Schedule B (List of Services) in accordance
with the performance standards set forth in Schedule C (Performance Standards)
(hereinafter, the "PERFORMANCE STANDARDS") , except as otherwise provided in
this Agreement or to the extent that the Sub-Administrator is prevented from
such performance by circumstances beyond its reasonable control. Changes at any
time to the Performance Standards shall be effective only if made in accordance
with ARTICLE 11. The Administrator's sole remedy in the event of any failure by
the Sub-Administrator to provide the services in accordance with the Performance
Standards is set forth in Schedule C (Performance Standards); provided, however,
that nothing set forth in this ARTICLE 23 shall in any way modify or diminish
the Administrator's right to receive and the Sub-Administrator's obligation to
provide the services in the manner set forth in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
XXXXXX INVESTMENT PARTNERS, INC.
By: /s/ XXXXX X. XXXXXXX
----------------------------------------
Name: Xxxxx X. XxXxxxx
Title: General Counsel and Chief Compliance Officer
---------
SEI INVESTMENTS GLOBAL FUNDS SERVICES
By: /s/ XXXX XXXXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
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SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF OCTOBER 1, 2001
BETWEEN
XXXXXX INVESTMENT PARTNERS, INC.
AND
SEI INVESTMENTS MUTUAL FUNDS SERVICES
Portfolios: This Agreement shall apply to all Portfolios and all classes
of Xxxxxx Funds ("the Trust"), either now existing or
in the future created. The following is a listing of
the current portfolios of the Trust (collectively,
the "Portfolios"):
Xxxxxx Concentrated Growth Fund
Xxxxxx Core Growth
Fund Xxxxxx Emerging Growth Fund
Xxxxxx International Core Growth Fund
Xxxxxx Large Cap Growth Fund
Xxxxxx Mid Cap Equity Fund
Xxxxxx Midcap Growth Fund
Xxxxxx New Enterprise Fund
Xxxxxx Quantitative Large Cap Value Fund
Xxxxxx Small Cap Equity Fund
Xxxxxx Small Cap Growth Fund
Xxxxxx Quantitative Broad Market Fund
(anticipated July 1, 2008 launch)
Xxxxxx Core Growth 130/30 Fund (anticipated July 1,
2008 launch)
Fees: Pursuant to Article 3 the Administrator shall pay the
Sub-Administrator compensation for services rendered
to the Portfolios equal to the greater of: (i) an
annual rate of .035% on the first $3.5 billion of
assets; .0325% on the next $6.5 billion of assets,
and .0175% on all assets over $10 billion. The fees
are calculated daily per Portfolio and paid monthly,
or a Trust level minimum equal to $70,000 annually
per each Portfolio, and a $15,000 annual minimum
administration fee for additional share classes. The
fees are calculated daily and paid monthly.
Term: This Agreement shall remain in effect until October 1, 2010
(the "INITIAL TERM") and thereafter shall
automatically renew for successive two year terms
(each, a "RENEWAL TERM"), unless and until this
Agreement is terminated in accordance with the
provisions of Article 5 hereof.
[END OF SCHEDULE A]
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SCHEDULE B
TO THE ADMINISTRATION AGREEMENT
DATED AS OF OCTOBER 1, 2001
BETWEEN
XXXXXX INVESTMENT PARTNERS, INC.
AND
SEI INVESTMENTS MUTUAL FUNDS SERVICES
List of Services
1. CASH PROCESSING
Record Transfer Agent paid-in-capital activity using an automated
Transfer Agent feed Reconcile shares and accruals with the Transfer
Agent using automated Transfer Agent feed Resolve cash movement
discrepancies Provide 5-day cash projections Provide advisor with daily
cash projection Track differences between accrual and actual cash
received from custodian using an automated custodian feed Reconcile
security balances with custodian using an automated custodian feed
Identify failed trades and notify custodian
2. VALIDATION OF INCOME & EXPENSE ACCRUALS
Track and validate amortization, accretion, interest, and dividend
income for securities Modify expense accrual changes at least twice per
year Process expense payments to service providers monthly Process
12b-1 payments to service providers Process payments to advisor,
sub-advisor, and administrator Ensure income and expense categories are
properly classified for reporting purposes Maintain book / tax
differences off-line to assist in tax return preparation (where no
special transactions are involved).
3. INCOME & CAPITAL GAIN DISTRIBUTIONS
Calculate and record income and capital gains as required by the Funds'
prospectus Provide distribution [factors] to advisor and Transfer Agent
Reconcile distributions with Transfer Agent and resolve any differences
Coordinate estimated cash payments required for capital gains and
dividends not reinvested
4. SECURITY MASTER FILE & TRADE PROCESSING
Maintain one security master file with all indicative data elements
Receive automated feed of security trades from the Adviser not later
than T+1 in SEI `s standard format Enter same-day settlement trades on
Trade Date (T).
Validate trade information
Maintain tax lot records according to a default selected by advisor
Record all mandatory corporate actions, validating income and
adjustments Receive and record voluntary corporate actions Track
international dividend reclaims
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5. FUND VALUATION
Follow SEI's standard pricing and valuation policies Obtain security
valuation quotes from reliable industry resources
Obtain broker quotes for securities whose prices cannot be obtained
from pricing vendors (limited to 5% of holdings) Manage and respond to
price challenges by advisor or sub-advisor Investigate stale prices
Check for trading halts on securities at market close Calculate Net
Asset Value (NAV) of each fund Validate prices that deviate from
pre-established thresholds Communicate NAVs to NASDAQ & Transfer Agent
6. PERFORMANCE REPORTING
Provide SEI standard reports in electronic format (FTP or email):
Provide (plot points) and total return data for financial regulatory
reporting (prospectuses, annuals, semi-annuals) Provide conversion
support Provide After-Tax Return Reporting Calculate Fund Performance
within regulatory guidelines
7. TREASURY SERVICES
Set expense assumptions and review preliminary budgets for Funds Adjust
budget assumptions quarterly Calculate monthly revenue Generate 12b-1
Summary Reports Create quarterly dividend payment report Report on
distribution plan expenditures Provide accounting data for Statement of
Additional Information Complete expense section of prospectus
8. TAX SERVICES
Compute required capital gains distributions
Prepare estimated capital gain distributions twice per year (fiscal
year end and excise). Prepare federal and state tax returns for the
Funds Coordinate foreign tax credit notification to shareholders
Prepare year-end 60-day notices Prepare year-end provision and tax
footnotes Provide data for year end 1099 and supplemental tax letters
Calculate reallocations of income and notify Transfer Agent Conduct
required income qualification tests Apply for TIN / EINs to commence
business of new Portfolios
9. GENERAL BUSINESS CONSULTING
Recommend opportunities for asset gathering or asset growth Identify
best practices and suggest methods for improving internal efficiencies
Conduct general business planning Provide Blue Sky interface and
registration assistance
10. FUND MANAGEMENT
Provide officers of the fund if requested
Assist in the documentation of portfolio compliance violations on a
quarterly basis Attend board meetings as an interested party (1 SEI
representative).
11. COMPLIANCE CONSULTING
Monitor regulatory developments and communicated material regulatory
changes
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12. INDUSTRY RESEARCH
Provide regulatory alerts and updates as necessary (electronic copy
only) Provide SEI-created white papers and industry research Organize
and host annual executive conference Conduct semi-annual market
insights and trends brief Conduct annual client satisfaction surveys
Negotiate reduced-rate subscriptions to industry publications
13. SHAREHOLDER SERVICES
Obtain toll free lines & call prompters for fund family
Respond to shareholder (S/H) questions regarding the fund family
product line Respond to S/H account inquiries Respond to S/H questions
regarding financials and performance information Submit S/H requests
for literature Provide 2 monthly standard management reports on
statistics around inbound S/H calls Conduct routine Q/A testing on all
S/H services representatives Coordinate set-up of toll free lines, call
prompter services, and consultation on best practices around call
prompters
14. PERIPHONICS INTERACTIVE VOICE RESPONSE SUPPORT
Coordinate establishment of selected IVR model (priceline, price &
performance, or full service) Receive financial data from named
administrator / accountant (electronic feed required) Coordinate
initial scripting services, in English Coordinate scripting changes, up
to 4 per year Oversee maintenance and ongoing programming, as required,
of the service Provide monthly usage reports to management
10
15. PROXY COORDINATION
Coordinate with proxy vendor for distribution of proxies and tracking
of shareholder responses Identify distribution channels and shareholder
types Provide client with status sheets on proxy votes, weekly, up to 2
weeks out, and then daily until final date Coordinate with ADP to get
information on omnibus accounts Provide ADP with bulk materials for
distribution to omnibus accounts
16. SHAREHOLDER (S/H) TAX COMMUNICATIONS
Facilitate communications with Transfer Agent during planning stages
Quality check fund profile forms prior to submission to the Transfer
Agent Coordinate completion, review, and approval of special
shareholder tax inserts (only if administrator / accountant can provide
data electronically by January 15th) Coordinate printing and delivery
of special shareholder tax inserts for fund direct S/Hs Provide single
copy of special S/H tax insert to client or other interested party
Conduct on-site quality check to ensure that inserts are included with
proper tax forms
17. FINANCIAL STATEMENT PREPARATION ASSISTANCE
Contact Administrator to receive trades on trade date for financial
statement semi & year end Review "shell" financial statements (prior
year numbers, new disclosures, etc.) Identify non-income producing
securities Send Schedule of Investments Incorporate ROCSOP adjustments
into financial statements Complete financial data schedules Review
"Blueline" with the Administrator Complete N-SAR
18. ASSIST IN THE PRODUCTION OF REGULATORY REPORTS
Assist the Administrator and outside counsel with review of
prospectuses, supplements, and SAIs Provide plot points and total
return data for financial regulatory reporting (prospectuses, annuals,
semi-annuals, proxies)
19. PROJECT MANAGEMENT
Assist Administrator with project planning / project management for new
funds, products, share classes, or load structures Assist Administrator
with project planning / project management for launch of new fund
families
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SCHEDULE C
TO THE ADMINISTRATION AGREEMENT
DATED AS OF OCTOBER 1, 2001
BETWEEN
XXXXXX INVESTMENT PARTNERS, INC.
AND
SEI INVESTMENTS MUTUAL FUNDS SERVICES
Performance Standards
The Sub-Administrator's performance in connection with this Agreement shall be
determined by measuring the key performance indicators ("KPI") set forth herein.
Such KPI may be amended by mutual agreement of the parties from time to time,
against the corresponding service quality performance standards set forth below
(the "PERFORMANCE STANDARDS").
DEFINITIONS:
Capitalized terms not defined herein shall have the meaning ascribed to them in
the main body of this Agreement. In the case of conflict between a term defined
in this Schedule C and the main body of this Agreement, the term as defined in
this Schedule C shall control in each instance such term is used in this
Schedule C.
"BUSINESS DAY" means any Monday thru Friday, 8:00 a.m. - 5:00 p.m., excluding
any Saturday, Sunday or any official closing of the New York Stock Exchange.
"CALENDAR QUARTER" means a three-month period ending on March 31, June 30,
September 30 or December 31, provided however that with respect to the first
Calendar Quarter for which the Sub-Administrator calculates its Performance
Rating in accordance with the procedures set forth herein, Calendar Quarter
shall mean the period beginning June 1, 2008 and ending September 30, 2008 and
the calculation of the Performance Rating for such period shall be adjusted as
appropriate to reflect the total number of KPI for such four month period.
"EVENT" means each KPI that is monitored during any month and each KPI that
would have been monitored during any month but for the fact that such KPI
relates to an activity that is not required to be performed during the given
month (e.g. semi-annual or annual reports).
"NAV ERROR" means a Portfolio NAV that contains one or more errors in the
calculation of net asset value, which error(s) arise out of an action or
omission of the Sub-Administrator and is greater than $0.01 per share as set
forth in the Xxxxxx Funds' NAV Error Resolution Policy, a copy of which has been
approved by the board of directors of the Portfolios.
"PERFORMANCE RATING" means the number of Successful Events (as defined below)
during a Calendar Quarter divided by three times the number of KPI, currently
thirty-nine.
"PERFORMANCE MINIMUM" means the minimum acceptable Performance Rating that the
Sub-Administrator shall achieve during any Calendar Quarter. The Performance
Minimum as of the date hereof is 85%.
"PERFORMANCE REPORT" means the quarterly report provided by the
Sub-Administrator to the Administrator that shall set forth the
Sub-Administrator's Performance Rating during the preceding Calendar Quarter.
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PERFORMANCE STANDARDS:
KPI PERFORMANCE STANDARDS
-------------------------------------------- ---------------------------------------------------------------
1. NAV Accuracy Sub-Administrator will calculate each Portfolio's NAV free
from NAV Errors at a calculated rate of 99.8% or above.
2. NAV Reporting to NASDAQ 2nd Session Each Portfolio NAV calculated by the Sub-Administrator and
transmitted to NASDAQ 2nd Session will be delivered on time
at a calculated rate of 97.0% or above.
3. Performance Fee Adjustments Sub-Administrator will calculate and record performance fee
adjustments on the last Business Day of each month at a
calculated rate of 100%.
4. Daily Cash Availability Sub-Administrator will provide daily cash availability
statements to the Administrator each Business Day at or
before 11 a.m. at a calculated rate of 95% or above.
5. Financial Statement Delivery Sub-Administrator will provide financial statements to
shareholders on or before the statutory due date at a
calculated rate of 100%.
6. Form N-SAR/24f-2 Filing Sub-Administrator will prepare Form N-SAR and Form 24f-2 for
each Portfolio on or before the statutory due date at a
calculated rate of 100%.
7. Compliance Report Card Sub-Administrator will provide a standard report
card of compliance violations for each Portfolio to
the Administrator on or before that date that is ten
Business Days following month-end at a calculated rate
of 100%.
8. Compliance Breach Notification Sub-Administrator will notify the Administrator of
alleged material compliance violations within
one Business Day following the date on which the
Sub-Administrator becomes aware of the alleged
violation at a calculated rate of 100%.
9. Speed to Answer Sub-Administrator will answer in-bound telephone calls
to toll-free lines set up to receive shareholder telephone calls
within 25 seconds from the time such call is first received at
a calculated rate of 85% or above.
10. Dropped Calls Fewer than 5% of in-bound telephone calls to toll-free lines
set up to receive shareholder telephone calls will be
"dropped." For purposes of the foregoing, a "dropped" call
refers to a call that is connected but is not picked-up by
the Sub-Administrator.
11. Corporate Action Processing Sub-Administrator will process all security corporate actions
in a manner that takes into account the most readily available market data on
the ex-dividend date at a calculated rate of 95%.
12. Compensation of Board of Trustees Sub-Administrator will pay compensation to Fund board of trustees within
7 business days of a Board or Committee meeting or within 4 business days of
receiving Administrator approval of the amount to pay each trustee, whichever
comes later, at a calculated rate of 100%.
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13. Payment of Fund Expenses Sub-Administrator will pay all Fund authorized expenses not
later than 30 days from its receipt of an
Administrator-approved invoice or request for payment.
DATA COLLECTION AND PERFORMANCE RATING CALCULATION:
Beginning as of the Calendar Quarter commencing June 1, 2008, and for each
Calendar Quarter thereafter during the term of this Agreement, the
Sub-Administrator will calculate its Performance Rating in accordance with the
procedures set forth herein, and deliver a Performance Report to the
Administrator.
During the month-end process, each Event will be assigned a value of one when
the Sub-Administrator performs the KPI at or above the corresponding Performance
Standard or when such KPI is not monitored due to the fact that such KPI relates
to an activity that is not required to be performed during such month
("SUCCESSFUL EVENTS") and a value of zero when the Sub-Administrator fails to
perform the KPI at or above the corresponding Performance Standard ("DEFICIENT
EVENTS").
The Sub-Administrator's quarterly Performance Rating shall be calculated by
dividing the aggregate number of Successful Events during the Calendar Quarter
by three times the number of KPI, currently thirty-nine. A "SERVICE LEVEL
DEFICIENCY" will occur when the Performance Rating falls below the Performance
Minimum.
PERFORMANCE STANDARD EXCEPTIONS:
In determining the Sub-Administrator's conformance with the KPI set forth
herein, the Sub-Administrator shall be excused from its failure to achieve any
KPI if such failure is caused by any of the following: (i) the Sub-Administrator
does not receive, after proper and timely request, if applicable, proper and
timely reporting from the Administrator, custodians, prime brokers, transfer
agents, banks, pricing agents, investment manager and any outside agent whose
information is integral to the Sub-Administrator's deliverables; (ii) the
Sub-Administrator does not receive, after timely request, timely approvals and
confirmations from the Portfolios and the investment manager as required in
connection with the performance standards; or (iii) performance within the
stated KPI is adversely affected by a change in the standards of a third party
processing agent outside of the control of the Sub-Administrator or upon the
occurrence of one or more circumstances or events of force majeure or equipment
failure, as described in ARTICLE 15 or ARTICLE 16 of the Agreement.
An Event shall not be considered a Deficient Event to the extent that the
Sub-Administrator's errors or delays are caused by any of the exceptions set
forth above or other circumstances outside the reasonable control of the
Sub-Administrator, including, without limitation, any changes or updates not
previously requested by the Portfolios during month-end processing. Such Events
shall not be included in the total number of Events for purposes of calculating
the Performance Rating during any Calendar Quarter.
REPORTING:
The Sub-Administrator shall provide a written Performance Report to the
Administrator that shall set forth the Sub-Administrator's Performance Rating
during the applicable Calendar Quarter as well as the Sub-Administrator's
monthly performance of each of the KPI. The Sub-Administrator will prepare and
distribute the Performance Report to the Administrator promptly following the
close of the applicable Calendar Quarter and use best efforts before the
deadline specified by the Administrator for inclusion of the report in Board of
Trustee meeting materials. The Administrator will promptly review the
Performance Report and provide comments, if any, to the Sub-Administrator.
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NOTIFICATION & CORRECTIVE ACTION:
In the event of a Service Level Deficiency, the Administrator may provide
written notification ("DEFICIENCY NOTICE") to the Sub-Administrator requesting
that the Sub-Administrator modify its procedures in an effort to ensure that
such Service Level Deficiency is resolved. Upon receipt of a Deficiency Notice,
the Sub-Administrator have at least one full Calendar Quarter ("CURE PERIOD") to
implement corrective action with respect to such Service Level Deficiency. If
such efforts are successful in correcting the Service Level Deficiency in the
next Calendar Quarter ("CURE"), the Funds shall have no other rights with
respect to such Service Level Deficiency. In the event that the
Sub-Administrator fails to Cure the Service Level Deficiency during the Cure
Period, the Sub-Administrator shall issue a credit to the Administrator on the
Administrator's next monthly invoice equal to $25,000. The Sub-Administrator
shall only be entitled to one Cure Period during any rolling twelve month
period. Thereafter, any Service Level Deficiency shall immediately result in the
Sub-Administrator issuing a credit to the Administrator on the next monthly
invoice equal to $25,000.
NAV ERROR CREDIT:
Notwithstanding the foregoing, in the event that the Sub-Administrator
calculates a Portfolio NAV that includes an NAV Error, the Sub-Administrator
shall provide the Administrator with NAV Error credits in the manner set forth
below:
NAV ERROR NAV ERROR CREDIT
--------------------------------------------------------------- -------------------------
1st NAV Error during fiscal twelve month period ........... $ 5,000
2nd NAV Error during fiscal twelve month period ........... $15,000
3rd NAV Error and each subsequent NAV Error during fiscal
twelve month period ....................................... the greater of $25,000
each or all fund and/or
shareholder damages
directly related to
the NAV error(s) as set
forth in Section III (1)
and III (2) of the Xxxxxx
Funds NAV Error Resolution
Policy, a copy of which
has been provided to
the Sub-Administrator in
writing and in advance
The foregoing credit(s) shall be provided to the Administrator by the
Sub-Administrator on the next monthly invoice immediately following
identification of the applicable NAV Error.
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