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Exhibit 5b
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 1st day of October, 1996, by and between
the PERFORMANCE FUNDS TRUST, a Delaware business trust (the "Trust"), and BISYS
FUND SERVICES LIMITED PARTNERSHIP, d/b/a BISYS FUND SERVICES (the
"Administrator"), an Ohio limited partnership.
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"),
consisting of several series of shares of beneficial interest ("Shares"); and
WHEREAS, the Trust desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
such series of the Trust as the Trust and the Administrator may agree on
("Portfolios") and as listed on Schedule A attached hereto and made a part of
this Agreement, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Trust and the Administrator hereby agree as follows:
ARTICLE 1. Retention of the Administrator; Conversion to the Services. The
Trust hereby engages the Administrator to act as the administrator of the
Portfolios and to furnish the Portfolios with the management and administrative
services as set forth in Article 2 below (collectively, the "Services"), and, in
connection therewith, the Trust agrees to convert to the Administrator's data
processing systems and software (the "BISYS System") as necessary in order to
receive the Services. The Trust shall cooperate with the Administrator to
provide the Administrator with all necessary information and assistance required
to successfully convert to the BISYS System. The Administrator shall provide the
Trust with a schedule relating to such conversion and the parties agree that the
conversion may progress in stages. The date upon which all Services shall have
been converted to the BISYS System shall be referred to herein as the
"Conversion Date." The Administrator hereby accepts such engagement and agrees
to perform the Services commencing, with respect to each individual Service, on
the date that the conversion of such Service to the BISYS System has been
completed. The Administrator shall determine in accordance with its normal
acceptance procedures when the applicable Service has been successfully
converted.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Trust in any way and shall
not be deemed an agent of the Trust.
ARTICLE 2. Administrative Services. The Administrator shall perform or
supervise the performance by others of administrative services in connection
with the operations of the Portfolios, and, on behalf of the Trust, will
investigate, assist in the selection of and conduct relations with
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custodians, depositories, accountants, legal counsel, underwriters, brokers and
dealers, corporate fiduciaries, insurers, banks and persons in any other
capacity deemed to be necessary or desirable for the Portfolios' operations. The
Administrator shall provide the Trustees of the Trust with such reports
regarding investment performance as they may reasonably request but shall have
no responsibility for supervising the performance by any investment adviser or
sub-adviser of its responsibilities.
The Administrator shall provide the Trust with regulatory reporting, all
necessary office space, equipment, personnel, compensation and facilities
(including facilities for meetings of shareholders ("Shareholders") and Trustees
of the Trust) for handling the affairs of the Portfolios and such other services
as the Administrator shall, from time to time, determine to be necessary to
perform its obligations under this Agreement. In addition, at the request of the
Board of Trustees, the Administrator shall make reports to the Trust's Trustees
concerning the performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator shall:
(a) calculate contractual Trust expenses and control all disbursements
for the Trust, and as appropriate compute the Trust's yields, total
return, expense ratios, portfolio turnover rate and, if required,
portfolio average dollar-weighted maturity;
(b) prepare and file with the SEC Post-Effective Amendments to the
Trust's Registration Statement and supplements thereto, Notices of
Annual or Special Meetings of Shareholders and Proxy materials
relating to such meetings; coordinate (after consultation with the
Trust's investment adviser regarding printing costs) the printing of
such Post-Effective Amendments, supplements, and Proxy materials;
accumulate information for and, subject to the approval by the
Trust's Treasurer, prepare reports to the Trust's shareholders of
record and the SEC including, but not necessarily limited to, the
preparation and filing of (i) Semi-Annual Reports on Form N-SAR and
(ii) Notices pursuant to Rule 24f-2;
(c) prepare such reports, applications and documents (including reports
regarding the sale and redemption of Shares as may be required in
order to comply with Federal and state securities law) as may be
necessary or desirable to register the Trust's Shares with state
securities authorities, monitor the sale of Trust Shares for
compliance with state securities laws, and file with the appropriate
state securities authorities the registration statements and reports
for the Trust and the Trust's Shares and all amendments thereto, as
may be necessary or convenient to register and keep effective the
Trust and the Trust's Shares with state securities authorities to
enable the Trust to make a continuous offering of its Shares;
(d) review and provide advice and counsel on all sales literature (e.g.,
advertisements, brochures and shareholder communications) with
respect to each of the Portfolios;
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(e) administer contracts on behalf of the Trust with, among others, the
Trust's investment adviser, distributor, custodian, transfer agent
and fund accountant;
(f) supervise the Trust's transfer agent with respect to the payment of
dividends and other distributions to Shareholders;
(g) calculate performance data of the Trust and its Portfolios for
dissemination to information services covering the investment
company industry;
(h) coordinate and supervise the preparation and filing of the Trust's
tax returns;
(i) examine and review the operations and performance of the various
organizations providing services to the Trust or any Portfolio of
the Trust, including, without limitation, the Trust's investment
adviser, distributor, custodian, fund accountant, transfer agent,
outside legal counsel and independent public accountants, and at the
request of the Board of Trustees, report to the Board on the
performance of such organizations;
(j) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout and printing of
the Trust's semi-annual and annual reports to Shareholders;
(k) assist with the design, development, and operation of the Trust
Portfolios, including new classes, investment objectives, policies
and structure;
(l) provide individuals reasonably acceptable to the Trust's Board of
Trustees to serve as officers of the Trust, who will be responsible
for the management of certain of the Trust's affairs as determined
by the Trust's Board of Trustees;
(m) advise the Trust and its Board of Trustees on matters concerning the
Trust and its affairs;
(n) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust in
accordance with the requirements of Rules 17g-1 and 17d-1(d)(7)
under the 1940 Act as such bonds and policies are approved by the
Trust's Board of Trustees;
(o) monitor and advise the Trust and its Portfolios on their regulated
investment company status under the Internal Revenue Code of 1986,
as amended;
(p) perform all administrative services and functions of the Trust and
each Portfolio to the extent administrative services and functions
are not provided to the Trust or such Portfolio pursuant to the
Trust's or such Portfolio's investment advisory agreement,
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distribution agreement, custodian agreement, transfer agent
agreement and fund accounting agreement;
(q) furnish advice and recommendations with respect to other aspects of
the business and affairs of the Portfolios as the Trust and the
Administrator shall determine desirable; and
(r) assist in monitoring and developing compliance procedures for each
Portfolio which will include, among other matters, procedures to
monitor compliance with each Portfolio's investment objective,
policies, restrictions, tax matters and applicable laws and
regulations;
(s) monitor the Company's arrangements with respect to services provided
by financial institutions which are, or wish to become, shareholder
servicing agents for the Company ("Shareholder Servicing Agents").
With respect to Shareholder Servicing Agents, the Administrator
shall specifically monitor and review the services rendered by the
Shareholder Servicing Agents to their customers, who are the
beneficial owners of Shares, pursuant to agreements between the
Company and such Shareholder Servicing Agents ("Shareholder
Servicing Agreements"), including, among other things, reviewing the
qualifications of financial institutions wishing to be Shareholder
Servicing Agents, assisting in the execution and delivery of
Shareholder Servicing Agreements, reporting to the Board of
Directors with respect to the amounts paid or payable by the Company
from time to time under the Shareholder Servicing Agreements and the
nature of the services provided by Shareholder Servicing Agents, and
maintaining appropriate records in connection with its monitoring
duties;
(t) provide legal advice and counsel to the Company with respect to
regulatory matters including: monitoring regulatory and legislative
developments which may affect the Company and assisting in the
strategic response to such developments, counseling and assisting
the Company in routine regulatory examinations or investigations of
the Company, and working closely with outside counsel to the Company
in response to any litigation or non-routine regulatory matters;
(u) assist each Company in preparing for Board meetings by (i)
coordinating board book production and distribution, (ii) preparing
Board agendas and minutes, (iii) preparing the BISYS section of
Board materials, (iv) preparing special Board meeting materials,
including but not limited to, materials relating to annual contract
approvals and 12b-1 plan approvals, as agreed upon by the parties,
and (v) such other Board meeting functions that are agreed upon by
the parties; and
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(v) perform internal audit examinations, mail annual reports of the
Portfolios, prepare an annual list of Shareholders and mail notices
of Shareholders' meetings, proxies and proxy statements.
The Administrator shall perform such other services for the Trust that are
mutually agreed upon by the parties from time to time for which the Trust will
pay the Administrator's out-of-pocket expenses.
ARTICLE 3. Allocation of Charges and Expenses.
(A) The Administrator. The Administrator shall furnish at its own expense
the executive, supervisory and clerical personnel necessary to perform its
obligations under this Agreement. The Administrator shall also provide the items
which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Trust as well as all Trustees of the
Trust who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Trust retained by the Trustees of the Trust
to perform services on behalf of the Trust.
(B) The Trust. The Trust assumes and shall pay or cause to be paid all
other expenses of the Trust not otherwise allocated herein, including, without
limitation, organization costs, taxes, expenses for legal and auditing services,
the expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing Shareholders, all expenses incurred in connection with
issuing and redeeming Shares, the costs of custodial services, the cost of
initial and ongoing registration of the Shares under Federal and state
securities laws, fees and out-of-pocket expenses of Directors who are not
affiliated persons of the Administrator or the investment adviser to the Trust
or any affiliated corporation of the Administrator or the investment adviser,
insurance, interest, brokerage costs, litigation and other extraordinary or
nonrecurring expenses, and all fees and charges of investment advisers to the
Trust.
(C) Expense Limitations Under State Law.
(1) If the aggregate expenses of every character incurred by, or
allocated to, the Trust in any fiscal year, other than interest, taxes, expenses
under the 12b-1 Plans, brokerage commissions and other portfolio transaction
expenses, other expenditures which are capitalized in accordance with generally
accepted accounting principles and any extraordinary expense (including, without
limitation, litigation and indemnification expense), but including the fees
provided for in Article 3(B) of this Agreement and under the Investment Advisory
Agreement ("includable expenses"), shall exceed the expense limitations
applicable to the Trust imposed by state securities laws or regulations
thereunder, as these limitations may be raised or lowered from time to time, the
Trust may deduct from the fees to be paid to the Administrator, or the
Administrator will bear, to the extent required by state law, that portion of
such excess which bears the same relation to the total of such excess as the fee
to the Administrator bears to the total fee otherwise payable for the fiscal
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year by the Trust pursuant to this Agreement and the Advisory Agreement between
the Trust and the Adviser. The Administrator's obligation pursuant hereto will
be limited to the amount of the fees payable for the fiscal year by the Trust
pursuant to this Agreement.
(2) With respect to portions of a fiscal year in which this
Agreement shall be in effect, the limitation specified in subparagraph (1) above
shall be prorated according to the proportion which that portion of the fiscal
year bears to the full fiscal year. At the end of each month of the Trust's
fiscal year, the Administrator will review the includable expenses accrued
during that fiscal year to the end of the period and shall estimate the
contemplated includable expenses for the balance of that fiscal year. If, as a
result of that review and estimation, it appears likely that the includable
expenses will exceed the limitations referred to in this paragraph for a fiscal
year, the monthly fees relating to the Trust, payable to the Administrator under
this Agreement for such month shall be reduced, subject to later adjustments at
the end of each month through the end of the fiscal year to reflect actual
expenses, by an amount equal to the proportionate share attributable to the
Administrator as described in subparagraph (1) above, of a pro rata portion
(prorated on the basis of the remaining months of the fiscal year, including the
month just ended) of the amount by which the includable expenses for the fiscal
year (less an amount equal to the aggregate of actual reductions made pursuant
to this provision with respect to prior months of the fiscal year) are expected
to exceed the limitations provided in this paragraph. For purposes of the
foregoing, the value of the net assets of the Trust shall be computed in the
manner specified in Schedule A of this Agreement, and any payments required to
be made by the Administrator shall be made once a year promptly after the end of
the Trust's fiscal year.
ARTICLE 4. Compensation of the Administrator.
(A) Administration Fee. Commencing on the Conversion Date, for the
services to be rendered, the facilities furnished and the expenses assumed by
the Administrator pursuant to this Agreement, the Trust shall pay to the
Administrator compensation at an annual rate specified in Schedule A attached
hereto. Such compensation shall be calculated and accrued daily, and paid to the
Administrator monthly.
If the Conversion Date occurs subsequent to the first day of a month
or termination of this Agreement occurs before the last day of a month, the
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 Administrator's compensation for the
preceding month shall be made promptly.
(B) Survival of Compensation Rights. All rights of compensation under this
Agreement for services performed as of the termination date shall survive the
termination of this Agreement.
ARTICLE 5. Limitation of Liability of the Administrator. The duties of the
Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Administrator
hereunder. The Administrator shall not be liable for any error
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of judgment or mistake of law or for any loss arising out of any act or omission
in carrying out its duties hereunder, except a loss resulting from willful
misfeasance, bad faith or negligence in the performance of its duties, or by
reason of reckless disregard of its obligations and duties hereunder, except as
may otherwise be provided under provisions of applicable law which cannot be
waived or modified hereby. (As used in this Article 5, the term "Administrator"
shall include partners, officers, employees and other agents of the
Administrator as well as the Administrator itself.)
So long as the Administrator acts in good faith and with due diligence and
without negligence or reckless disregard of its obligations hereunder, the Trust
assumes full responsibility and shall indemnify the 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 the Administrator's actions taken or nonactions with
respect to the performance of services hereunder. The Administrator agrees to
indemnify and hold harmless the Company, its employees, agents, Trustees,
officers and nominees from and against any and all actions, suits and claims,
whether groundless or otherwise, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, reasonable counsel fees and other
expenses of every nature and character arising out of or in any way relating to
the Administrator's bad faith, willful misfeasance, negligence or reckless
disregard by it of its obligations and duties, with respect to the performance
of services under this Agreement. The indemnity and defense provisions set forth
herein shall indefinitely survive the termination of this Agreement.
The 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 indemnifying party may be asked to indemnify
or hold the other party harmless, the indemnifying party shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the indemnified party will use all reasonable
care to identify and notify the indemnifying party promptly concerning any
situation which presents or appears likely to present the probability of such a
claim for indemnification against the indemnifying party, but failure to do so
in good faith shall not affect the rights hereunder.
The indemnifying party 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 the indemnifying party elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the indemnifying party and satisfactory to the other party, whose
approval shall not be unreasonably withheld. In the event that the indemnifying
party elects to assume the defense of any suit and retain counsel, the
indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of a suit, it will reimburse the other party for the reasonable fees and
expenses of any counsel retained by the other party.
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The Administrator may apply to the Trust at any time for instructions and
may consult counsel for the Trust or its own counsel and with accountants and
other experts with respect to any matter arising in connection with the
Administrator's duties, and the Administrator shall not be liable or accountable
for any action taken or omitted by it in good faith in accordance with such
instructions or with the opinion of such counsel, accountants or other experts.
The Trust may consult counsel and accountants and other experts with
respect to any matter arising in connection with this Agreement, and the Trust
shall not be liable or accountable for any action taken or omitted by it in good
faith in accordance with such instructions or with the opinion of such counsel,
accountants or other experts.
Also, the 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. The Administrator will not be held to have
notice of any change of authority of any officers, employees or agents of the
Trust until receipt of written notice thereof from the Trust.
ARTICLE 6. Activities of the Administrator. The services of the
Administrator rendered to the Trust are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that trustees, officers, employees
and Shareholders of the Trust are or may be or become interested in the
Administrator, as directors, officers, employees and shareholders or otherwise
and that partners, officers and employees of the Administrator and its counsel
are or may be or become similarly interested in the Trust, and that the
Administrator may be or become interested in the Trust as a Shareholder or
otherwise.
ARTICLE 7. Duration of this Agreement. The Term of this Agreement shall be
as specified in Schedule A hereto.
ARTICLE 8. Assignment. This Agreement shall not be assignable by either
party without the written consent of the other party; provided, however, that
upon the provision of advanced written notice to the Trust, the Administrator
may, at its expense, subcontract with any entity or person concerning the
provision of the services contemplated hereunder. The Administrator shall not,
however, be relieved of any of its obligations under this Agreement by the
appointment of such subcontractor and provided further, that the Administrator
shall be responsible, to the extent provided in Article 5 hereof, for all acts
of such subcontractor as if such acts were its own. This Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and permitted assigns.
ARTICLE 9. Amendments. This Agreement may be amended by the parties hereto
only if such amendment is specifically approved (i) by the vote of a majority of
the Trustees of the Trust, and (ii) by the vote of a majority of the Trustees of
the Trust who are not parties to this Agreement or interested persons of any
such party, cast in person at a Board of Trustees meeting called for the purpose
of voting on such approval.
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For special cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the circumstances, and the
Administrator may conclusively assume that any special procedure which has been
approved by the Trust does not conflict with or violate any requirements of its
Declaration of Trust or then current prospectuses, or any rule, regulation or
requirement of any regulatory body.
ARTICLE 10. Certain Records. The 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 Administrator
on behalf of the Trust shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Trust and will be made available
to or surrendered promptly to the Trust on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Trust and follow the Trust's
instructions as to permitting or refusing such inspection; provided that the
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 Trust has
agreed to indemnify the Administrator against such liability.
ARTICLE 11. 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 12. 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, postage prepaid, addressed by the party giving notice to the other party
at the following address: if to the Administrator, to it at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000; if to the Trust, to it at 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxx, Attn: Xxxx Xxxxx, with a copy to Xxxxxx Xxxxxx, Esq.,
Xxxxx & XxXxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
address as such party may from time to time specify in writing to the other
party pursuant to this Section.
ARTICLE 13. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Ohio and the applicable provisions of the 1940
Act. To the extent that the applicable laws of the State of Ohio, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
ARTICLE 14. 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.
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ARTICLE 15. Confidential Information. Each party acknowledges that it may
acquire knowledge and information relating to the other party and its affiliates
including, but not limited to, information pertaining to business plans,
employees, customers and/or suppliers, shareholders and prospective
shareholders, and that all such knowledge and information acquired or developed
is and shall be confidential and proprietary information (all such confidential
and proprietary information herein collectively referred to as the "Confidential
Information"). Each party agrees to hold the Confidential Information in strict
confidence, to refrain from directly or indirectly disclosing it to others or
using it in any way except for purposes of performing services hereunder, and to
prevent any unauthorized person access to it either before or after termination
of this Agreement, without the prior written consent of the other party. Both
parties further agree to take all action reasonable and necessary to protect the
confidentiality of the Confidential Information. The parties shall use their
best efforts to have their officers, employees and agents agree to the terms of
this Section. The obligations of the parties contained in this Section shall
survive termination of this Agreement. Neither party's confidentiality
obligations under this provision shall apply to such information that (i) was in
the public domain or available to a third party without restrictions at or prior
to the time such information was made known to such party, (ii) had been
independently known to such party at the time of disclosure from persons who
were not subject to similar confidentiality obligations, or (iii) is required to
be disclosed by law (except that each party will use its best efforts to give
the other party written notice prior to any such disclosure).
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
PERFORMANCE FUNDS TRUST
By: /s/ XXXX X. XXXXXXX
-----------------------------------
Title: Principal Executive Officer
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BISYS FUND SERVICES LIMITED
PARTNERSHIP
BY: BISYS FUND SERVICES,
GENERAL PARTNER
By: /s/ J. XXXXX XXXXX
-----------------------------------
Title: Executive Vice President
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SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF OCTOBER 1, 1996
BETWEEN PERFORMANCE FUNDS TRUST
AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
Portfolios: This Agreement shall apply to all Portfolios of Performance Funds
Trust, either now or hereafter created (collectively, the
"Portfolios"). The current Portfolios of the Trust are set forth
below:
The Short Term Government Income Fund;
The Intermediate Term Government Income Fund;
The Equity Fund;
The Money Market Fund;
The Mid Cap Growth Fund; and
The Treasury Fund.
Fees: Pursuant to Article 4, in consideration of services rendered and
expenses assumed pursuant to this Agreement, the Trust will pay the
Administrator on the first business day of each month, or at such
time(s) as the Administrator shall request and the parties hereto
shall agree, a fee computed daily at the annual rate of:
Fifteen one-hundredths of one percent (.15%) of the Trust's
average daily net assets up to $1 billion.
Twelve one-hundredths of one percent (.12%) of the Trust's
daily net assets in excess of $1 billion.
The fee for the period from the day of the month upon which the
Conversion Date occurs until the end of that month shall be prorated
according to the proportion which such period bears to the full
monthly period. Upon any termination of this Agreement before the
end of any month, the fee for such part of a month shall be prorated
according to the proportion which such period bears to the full
monthly period and shall be payable upon the date of termination of
this Agreement.
For purposes of determining the fees payable to the Administrator,
the value of the net assets of a particular Portfolio shall be
computed in the manner described in the Trust's Declaration of Trust
or in the Prospectus or Statement of Additional Information
respecting that Portfolio as from time to time is in effect for the
computation of the value of such net assets in connection with the
determination of the liquidating value of the shares of such
Portfolio.
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The parties hereby confirm that the fees payable hereunder shall be
applied to each Portfolio as a whole, and not to separate classes of
shares within the Portfolios.
Term: The initial term of this Agreement (the "Initial Term") shall be for
a period commencing on the date this Agreement is executed by both
parties and ending on the date that is 60 months after the
Conversion Date; provided, however, that the Trust shall have the
sole option of terminating this Agreement, without penalty, at the
conclusion of the first 24 months of such Initial Term. In the event
of a material breach of this Agreement by either party, the
non-breaching party shall notify the breaching party in writing of
such breach and upon receipt of such notice, the breaching party
shall have 45 days to remedy the breach. In the event the breach is
not remedied within such time period, the nonbreaching party may
immediately terminate this Agreement.
Unless 60 days advance written notice of nonrenewal is provided by
either party prior to the end of the Initial Term or the Agreement
is sooner terminated as set forth above, this Agreement shall
continue in effect following the Initial Term unless and until it is
terminated in the manner set forth in this paragraph. Either party
may terminate this Agreement after the Initial Term, without
penalty, by the provision of 60 days advance written notice to the
other party.
Notwithstanding the foregoing, after such termination for so long as
the Administrator, with the written consent of the Trust, in fact
continues to perform any one or more of the services contemplated by
this Agreement or any schedule or exhibit hereto, the provisions of
this Agreement, including without limitation the provisions dealing
with indemnification, shall continue in full force and effect.
Compensation due the Administrator and unpaid by the Trust upon such
termination shall be immediately due and payable upon and
notwithstanding such termination. The Administrator shall be
entitled to collect from the Trust, in addition to the compensation
described in this Schedule A, the amount of all of the
Administrator's cash disbursements for services in connection with
the Administrator's activities in effecting such termination,
including without limitation, the delivery to the Trust and/or its
designees of the Trust's property, records, instruments and
documents, or any copies thereof. Subsequent to such termination, in
exchange for payment of its costs, the Administrator will provide
the Trust with reasonable access to any Trust documents or records
remaining in its possession.
If, during the Initial Term, for any reason other than (i)
nonrenewal, (ii) termination by the Trust at the conclusion of the
first 24 months of the Initial Term, or (iii) termination based upon
a material breach of this Agreement, the Administrator is replaced
as administrator, or if a third party is added to perform all or a
part of the services provided by the Administrator under this
Agreement
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(excluding any sub-administrator appointed by the Administrator as
provided in Article 7 hereof), then the Trust shall make a one-time
cash payment, as liquidated damages, to the Administrator equal to
the balance due the Administrator for (i) the lesser of (a) the next
12 months of the Initial Term or (b) the remainder of such Initial
Term, in the event such termination occurs after the first 24 months
of such Initial Term or (ii) the lesser of (a) the next 12 months of
the Initial Term or (b) the remaining time period within the first
24 months of the Initial Term, in the event such termination occurs
during the first 24 months of such Initial Term, assuming for
purposes of calculation of the payment that (i) the asset level of
the Trust on the date the Administrator is replaced, or a third
party is added, will remain constant for the balance of the Initial
Term and (ii) such payment shall be based upon the actual fee being
charged on such date (which may or may not be lower than the
contractual fee amount).
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