ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made the 10th day of August 1999, by and between ICM Series Trust a
Massachusetts Business Trust, having its principal office and place of business
at 0 Xxxxxxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, XX 00000 (the "Fund"), and
American Data Services, Inc., a New York corporation having its principal office
and place of business at the Hauppauge Corporate Center, 000 Xxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 ("ADS").
BACKGROUND
WHEREAS, the Fund is a diversified open-end management investment
company registered with the United States Securities and Exchange Commission
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, ADS is a corporation experienced in providing administrative
services to mutual funds and possesses facilities sufficient to provide such
services; and
WHEREAS, the Fund desires to avail itself of the experience, assistance
and facilities of ADS and to have ADS perform for the Fund certain services
appropriate to the operations of the Fund and ADS is willing to furnish such
services in accordance with the terms hereinafter set forth.
TERMS
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the Fund and ADS hereby agree to the following:
1. DUTIES OF ADS.
ADS will provide the Fund with the necessary office space (the Fund's
principal office will be located at the New York offices of ADS), communication
facilities and personnel to perform the following services for the Fund:
(a) Monitor all regulatory (1940 Act and IRS) and prospectus
restrictions for compliance;
(b) Prepare and coordinate the printing of semi-annual and annual
financial statements, other communications to shareholders
including notices, proxy statements and forms of proxy;
(c) Prepare selected management reports for performance and
compliance analyses as agreed upon by the Fund and Administrator
from time to time including; without limitation, reports
referred to in Section 4 and reports necessary and appropriate
in connection with regular and special meetings of the Fund's
Board of Trustees.
(d) Prepare selected financial data required for directors' meetings
as agreed upon by the Fund and ADS from time to time,
preparation of meeting minutes, compliance calendar and
compliance reports, and coordinate directors meeting agendas
with outside legal counsel to the Fund;
(e) Determine income and capital gains available for distribution
and calculate distributions required to meet regulatory, income,
and excise tax requirements, to be reviewed by the Fund's
independent public accountants;
(f) Prepare the Fund's federal, state, and local tax returns to be
reviewed by the Fund's independent public accountants;
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(g) Prepare and maintain the Fund's operating expense budget to
determine proper expense accruals to be charged to the Fund in
order to calculate its daily net asset value, to include
calculations of contractual expense limitations, expense waivers
and all Fund disbursements;
(h) 1940 ACT filings - In conjunction with the Fund's outside legal
counsel (ADS will prepare, outside counsel will review) ADS
will:
O Prepare and file with the SEC via XXXXX, the Fund's Form
N-SAR reports;
O Update all financial sections of the Fund's Statement of
Additional Information and coordinate its completion and
filing with the SEC via XXXXX;
O Update all financial sections of the Fund's prospectus and
coordinate its completion and filing with the SEC via XXXXX;
O Update all financial sections of the Fund's proxy statement
and coordinate its completion and filing with the SEC via
XXXXX;
O Prepareand file with the SEC via XXXXX, an annual update to
Fund's 24f-2 filing (if applicable);
(i) Monitor services provided by the Fund's custodian bank as well
as any other service providers to the Fund;
(j) Provide appropriate financial schedules (as requested by the
Fund's independent public accountants or SEC examiners),
coordinate the Fund's annual or SEC audit, and provide office
facilities as may be required;
(k) Prepare (with the assistance of outside counsel and Fund
management) and distribute all material necessary and
appropriate for Board meetings, coordinate and attend management
and board of directors meetings as requested;
(l) The preparation and filing (filing fee to be paid by the Fund)
of applications and reports as necessary to register or maintain
the Funds registration under the securities or "Blue Sky" laws
of the various states selected by the Fund or its Distributor.
(m) Monitor Code of Ethics filings by Directors and Officers of the
Fund as required under SEC Rule 17j of the 40 Act.
(n) Review adequacy of Fidelity Bond Insurance and make appropriate
filings with the SEC under Section 17(g) of the 40 Act.
ADS shall, for all purposes herein, be deemed to be an independent contractor
and shall, unless otherwise expressly provided or authorized, have no authority
to act for or represent the Fund in any way or otherwise be deemed an agent of
the Fund.
2. COMPENSATION OF ADS.
In consideration of the services to be performed by ADS as set forth
herein for each portfolio listed in Schedule B, ADS shall be entitled to receive
compensation and reimbursement for all reasonable out-of-pocket expenses. The
Fund agrees to pay ADS the fees and reimbursement of out-of-pocket expenses as
set forth in the fee schedule attached hereto as Schedule A.
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3. RESPONSIBILITY AND INDEMNIFICATION.
ADS shall not be responsible for, and the Fund shall indemnify and hold
ADS harmless from and against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of or attributable
to:
(a) All actions of ADS whether taken directly or through agents or
subcontractors required to be taken pursuant to this Agreement,
provided that such actions are taken in good faith and without
negligence or willful misconduct.
(b) The reliance on or use by ADS whether directly or through agents
or subcontractors of information, records and documents which (i)
are received by ADS or its agents or subcontractors and furnished
to it by or on behalf of the Fund, and (ii) have been prepared
and/or maintained by the Fund or any other person or firm on
behalf of the Fund provided, in each case, that ADS in good faith
believes such information to be accurate (or such records and
documents to be genuine) and provided further that such
information, records or documents are not received from or
prepared by an employee, officer or agent of ADS or of any
company affiliated with ADS.
(c) The reliance on, or the carrying out by ADS or its agents or
subcontractors of any instructions or requests of the Fund or its
agents, other than ADS or its affiliates.
ADS shall indemnify and hold the Fund harmless from and against any and
all losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to any action or failure or omission to
act by ADS as a result of ADS's lack of good faith, negligence or willful
misconduct.
At any time ADS may apply to any officer of the Fund for instructions,
and may consult with legal counsel with respect to any matter arising in
connection with the services to be performed by ADS under this Agreement, and
ADS shall not be liable and shall be indemnified by the Fund for any action
taken or omitted by it in reliance upon such instructions or upon the opinion of
such counsel. ADS, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document furnished by or on behalf of
the Fund, reasonably believed to be genuine and to have been signed by the
proper person or persons, or upon any instruction, information, data, records or
documents provided ADS or its agents or subcontractors by machine readable
input, telex, CRT data entry or other similar means authorized by the Fund, and
shall not be held to have notice of any change of authority of any person, until
receipt of written notice thereof from the Fund. ADS, its agents and
subcontractors shall also be protected and indemnified in recognizing stock
certificates which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Fund, and the proper
countersignature of any former transfer agent or registrar, or of a co-transfer
agent or co-registrar.
In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes.
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any act or
failure to act hereunder.
In order that the indemnification provisions contained in this Article
5 shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party of seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
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4. REPORTS.
(a) ADS shall provide to the Board of Directors of the Fund, on a
quarterly basis, a report, in such a form as ADS and the Fund shall from time to
time agree, representing that, to its knowledge, the Fund was in compliance with
all requirements of applicable federal and state law, including without
limitation, the rules and regulations of the Securities and Exchange Commission
and the Internal Revenue Service, or specifying any instances in which the Fund
was not so in compliance. Whenever, in the course of performing its duties under
this Agreement, ADS determines, on the basis of information supplied to ADS by
the Fund, that a violation of applicable law has occurred, or that, to its
knowledge, a possible violation of applicable law may have occurred or, with the
passage of time, could occur, ADS shall promptly notify the Fund and its counsel
of such violation.
5. ACTIVITIES OF ADS.
ADS shall be free to render similar services to others so long as its
services hereinunder are not impaired thereby.
6. RECORDS.
The records maintained by ADS shall be the property of the Fund, and
shall be surrendered to the Fund, at the expense of the Fund, promptly upon
request by the Fund. ADS agrees to maintain a back-up set of accounts and
records of the Fund (which back-up set shall be updated on at least a weekly
basis) at a location other than that where the original accounts and records are
stored. ADS shall assist the Fund's independent auditors, or, upon approval of
the Fund, any regulatory body, in any requested review of the Fund's accounts
and records. ADS shall preserve the accounts and records as they are required to
be maintained and preserved by Rule 31a-1.
7. CONFIDENTIALITY.
ADS agrees that it will, on behalf of itself and its officers and
employees, treat all transactions contemplated by this Agreement, and all other
information germane thereto, as confidential and such information shall not be
disclosed to any person except as may be authorized by the Fund.
8. DURATION AND TERMINATION OF THE AGREEMENT.
This Agreement shall become effective on the date first above written.
This Agreement shall remain in effect for a period of three (3) years
from the date of its effectiveness (the "Initial Term") and shall continue in
effect for successive twelve-month periods; provided that such continuance is
specifically approved at least annually by the Board and by a majority of the
Trustees who are not parties to this Agreement or interested persons of any such
party.
After the Initial Term, this Agreement may be terminated at anytime (i)
by the Board on 90 days' written notice to ADS or (ii) by ADS on 90 days'
written notice to the Fund. The obligations of Sections 2 and 3 shall survive
any termination of this Agreement
Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Fund. Additionally, ADS reserves the right to charge for any other
reasonable costs expenses associated with such termination.
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9. ASSIGNMENT.
This Agreement shall extend to and shall be binding upon the parties
hereto and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Fund without the prior written consent
of ADS, or by ADS without the prior written consent of the Fund.
10. NEW YORK LAWS TO APPLY.
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of New York as at the time in effect and
the applicable provisions of the 1940 Act. To the extent that the applicable law
of the State of New York, or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act, the latter shall control.
11. AMENDMENTS TO THIS AGREEMENT.
This Agreement may be amended by the parties hereto only if such
amendment is in writing and signed by both parties.
12. MERGER OF AGREEMENT.
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof whether oral or written.
13. MASSACHUSETTS BUSINESS TRUST.
The parties understand and agree that the Fund is a Massachusetts
business trust and, as such, the obligations of the Fund under this agreement
shall not be binding upon any of the Trustees, or shareholders of the Fund, but
only on the assets and property of the Fund, as provided in the Declaration of
Trust.
14. NOTICES.
All notices and other communications hereunder shall be in writing,
shall be deemed to have been given when delivered in person or by certified
mail, return receipt requested, and shall be given to the following addresses
(or such other addresses as to which notice is given):
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To the Fund: To ADS:
Xx. Xxxx Xxxx Xxxxxxx Xxxxx
Chief Operating Officer President
Ironwood Capital Management LLC American Data Services, Inc.
0 Xxxxxxxxxxxxx Xxxxx, Xxxxx 0000 000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ICM/ISABELLE SMALL CAP VALUE FUND AMERICAN DATA SERVICES, INC.
By:/s/ By:/s/
----------------------------- -------------------------
Xxxxxx X. Xxxxxxxx, President Xxxxxxx Xxxxx, President
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SCHEDULE A
(a) ADMINISTRATIVE SERVICE FEE:
For the services rendered by ADS in its capacity as administrator, as
specified in Paragraph 1. DUTIES OF ADS., the Fund shall pay ADS within Twenty
(20) days after receipt of an invoice from ADS at the beginning of each month, a
fee equal to the greater of:
NOTE: The following fees are per portfolio serviced.
MINIMUM FEE:
CALCULATED FEE WILL BE BASED UPON PRIOR MONTH AVERAGE NET ASSETS:
(No prorating partial months)
Each Portfolio
Under $10 million.............................. $1,625
From $10 million to $20 million................ 2,000
From $20 million on............................ 2,500
OR,
NET ASSET CHARGE:
1/12th of 0.1% (12 basis points) of average net assets of portfolio for month.
FEE INCREASES
On each anniversary date of this Agreement, the minimum service fees
enumerated above will be increased by the change in the Consumer Price Index for
the Northeast Region (CPI) for the twelve month period ending with the month
preceding such annual anniversary date.
(b) EXPENSES:
The Fund shall reimburse ADS for any out-of-pocket expenses , exclusive
of salaries, advanced by ADS in connection with but not limited to the printing
or filing of documents for the Fund, travel, telephone, quotation services,
facsimile transmissions, stationery and supplies, record storage, postage,
telex, and courier charges, incurred in connection with the performance of its
duties hereunder. ADS shall provide the Fund with a monthly invoice of such
expenses and the Fund shall reimburse ADS within fifteen (15) days after receipt
thereof.
(c) STATE REGISTRATION (BLUE SKY) SURCHARGE:
The fees enumerated in paragraph (a) above include the initial state
registration, renewal and maintenance of registrations (as detailed in Paragraph
1(l) DUTIES OF ADS) for three (3) states. Each additional state registration
requested will be subject to the following fees:
Initial registration ............... $295.00
Registration renewal ............... $150.00
Sales reports (if required) ....... $ 25.00
The state registration fees enumerated above will be discounted by 33.333% until
the Fund's net assets exceed $20 million.
(d) SPECIAL REPORTS:
All reports and /or analyses requested by the Fund, its auditors, legal
counsel, portfolio manager, or any regulatory agency having jurisdiction over
the Fund, that are not in the normal course of fund administrative activities as
specified in Section 1 of this Agreement shall be subject to an additional
charge, agreed upon in advance, based upon the following rates:
Labor:
Senior staff - $150.00/hr.
Junior staff - $ 75.00/hr.
Computer time - $ 45.00/hr.
SCHEDULE B
PORTFOLIOS TO BE SERVICED UNDER THIS AGREEMENT:
ICM/ISABELLE SMALL CAP VALUE FUND
