Exhibit (h)(1)
ADMINISTRATION AGREEMENT
AGREEMENT made as of the 1st day of December, 2003, between PERFORMANCE
FUNDS TRUST (the "Trust"), a Delaware trust having its principal place of
business at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx, AND BISYS FUND
SERVICES OHIO, INC. ("BISYS"), a Delaware corporation having its principal place
of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust and BISYS entered into an Administration Agreement dated
October 1, 1996 and amendments dated October 1, 1998, August 14, 2001, August 1,
2003 and October 1, 2003 (as so amended, the "1996 Agreement"), whereby BISYS
agreed to perform administration services for the Trust, which has continued in
effect through the date hereof;
WHEREAS, the Trust desires that BISYS continue to perform administration
services for the Trust and each investment portfolio of the Trust, as now in
existence or as hereafter may be established from time to time (individually
referred to herein as the "Fund" and collectively as the "Funds"), which are
currently set forth on Schedule A;
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS and Trust wish to enter into this Agreement in order to set
forth the terms under which BISYS will perform the administration services set
forth herein for the Trust.
NOW, THEREFORE, in consideration of the covenants hereinafter contained,
Trust and BISYS hereby agree as follows:
1. Retention of BISYS
The Trust hereby retains BISYS to act as the administrator of the Trust and
to furnish the Trust and Funds with the management and administrative services
as set forth in Section 2 below. BISYS hereby accepts such appointment to
perform the duties set forth below.
BISYS 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.
2. Administrative Services
BISYS shall perform or supervise the performance by others of
administrative services in connection with the operations of the Trust and
Funds, and, on behalf of the Trust, shall investigate, assist in the selection
of and conduct relations with custodians,
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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 Trust's and Funds' operations. BISYS shall
provide the Board of Trustees of the Trust (hereafter referred to as the
"Board") with such reports regarding investment performance as it may reasonably
request but shall have no responsibility for supervising the performance by any
investment adviser or sub-adviser of its responsibilities.
BISYS shall provide the Trust with all necessary office space, equipment,
personnel, compensation and facilities (including facilities for shareholders'
and Board of Trustees meetings) for handling the affairs of the Trust and Funds
and such other services as BISYS shall, from time to time, determine to be
necessary to perform its obligations under this Agreement. In addition, at the
request of the Board, BISYS shall make reports to the Board concerning the
performance of its obligations hereunder.
Without limiting the generality of the foregoing, BISYS 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) subject to review by the Trust and counsel to the Trust, prepare (i)
the annual update to the Trust's registration statement on Form N-1A,
(ii) other amendments to the Trust's registration statement and
supplements to its Prospectus and Statement of Additional Information,
and (iii) Notices of Annual or Special Meetings of shareholders of the
Trust and proxy materials relating thereto, and file the foregoing
with the Securities and Exchange Commission (the "SEC");
(c) prepare such reports, applications and documents (including reports
regarding the sale and redemption of shares of beneficial interest in
the Trust as may be required in order to comply with Federal and state
securities laws) as may be necessary or desirable to register the
shares of beneficial interest in the Trust ("Shares") with state
securities authorities, monitor the sale of 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 Shares and all amendments thereto, as may be necessary or
convenient to register and keep effective the registration of the
Trust and the Shares with state securities authorities to enable the
Trust to make a continuous offering of its Shares;
(d) coordinate and prepare, with the assistance of the Funds' investment
adviser and officers, drafts of communications to shareholders of
record of the Funds ("Shareholders"), including the annual report to
Shareholders; prepare the semi-annual report for each of the Funds;
and file the certified
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final versions thereof on Form N-CSR, and file all required notices
pursuant to Rule 24f-2;
(e) coordinate the solicitation and tabulation of proxies in connection
with the annual meeting of SHAREHOLDERS each year, if one is held;
(f) administer contracts on behalf of the Trust with, among others, the
Trust's investment adviser, distributor, custodian, transfer agent and
fund accountant;
(g) supervise the Trust's transfer agent with respect to the payment of
dividends and other distributions to Shareholders;
(h) calculate performance data of the Funds for dissemination to up to six
(6) information services covering the investment company industry;
(i) coordinate and supervise the preparation and filing of the Trust's tax
returns;
(j) assist with the layout and printing of prospectuses and assist with
and coordinate layout and printing of the Funds' semi-annual and
annual reports to Shareholders, prospectuses, prospectus supplements,
and proxy statements;
(k) assist with the design, development, and operation of the Funds,
including new classes, investment objectives, policies and structure;
(l) make available appropriate individuals to serve as officers of the
Trust, upon designation as such by the Board, to serve in ministerial
capacities related to services PROVIDED by BISYS as determined by the
Board, or to serve in executive capacities subject to the provisions
of Schedule B and the BISYS Policies referred to therein;
(m) advise the Trust and the Board on matters concerning the Trust, the
Funds and their affairs;
(n) obtain, maintain and file fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust at the
expense of the Trust and Funds in accordance with the requirements of
Rules 17g-1 and 17d-1(7) under the Investment Company Act of 1940, as
amended (the "1940 Act"), to the extent such bonds and policies are
approved by the Board;
(o) monitor and advise the Trust and its Funds on their regulated
investment company status under the Internal Revenue Code of 1986, as
amended;
(p) perform necessary administrative services and functions of the Trust
and each Fund to the extent administrative services and functions are
not provided to the Trust or such Fund pursuant to the Trust's or such
Fund's
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investment advisory agreement, distribution agreement, custodian
agreement, transfer agent agreement or fund accounting agreement
(q) maintain corporate records on behalf of the Trust, including, but not
limited to, minute BOOKS, Declaration of Trust and By-Laws;
(r) furnish advice and recommendations with respect to other aspects of
the business and affairs of the Funds as the Trust AND BISYS shall
determine desirable.
(s) assist in developing compliance procedures for each Fund, and provide
compliance monitoring services incorporating certain of those
procedures, which will include, among other matters, compliance with
each Fund's investment objective, defined investment policies,
restrictions, and tax diversification, distribution and income
requirements, as are determinable based upon the Fund's accounting
records;
(t) monitor services provide under Shareholder Service Plans adopted by
the Board and financial institutions that serve, or propose to serve,
as shareholder services agents thereunder ("Shareholder Service
Agents"); coordinate the services to be rendered by Shareholder
Service Agents pursuant to Shareholder Service Agreements under
Shareholder Service Plans, and review the qualifications of
Shareholder Service Agents to serve as such under the relevant
Shareholder Service Plan; coordinate and assist in the Trust's
execution and delivery of Shareholder Service Agreements; report to
the Board regarding amounts paid under Shareholder Service Agreements
and the nature of Services provided by the Shareholder Service Agents
thereunder; and maintain appropriate records in connection with the
foregoing;
(u) provide assistance and guidance to the Trust with respect to matters
governed by or related to regulatory requirements and developments
including: monitoring regulatory and legislative developments which
may effect the Trust, and assisting in strategic planning in response
thereto; assisting the Trust in responding to and providing documents
for routine regulatory examinations or investigations; and working
closely with counsel to the Trust in response to such routine or
non-routine regulatory matter; and
(v) assist the Trust in preparing for and administering Board meetings by
(i) coordinating Board book production and distribution, (ii) subject
to review and approval by the Trust and its counsel, preparing Board
agendas and minutes, (iii) preparing the relevant sections of the
Board materials pertaining to the responsibilities of BISYS, (iv)
assisting and coordinating special materials related to annual
contract approvals and approval of rule 12b-1 plans and related
matters, (v) provide appropriate personnel to attend Board meetings
and record the minutes of such meetings, and produce and distribute
materials for Board meetings, including relevant
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sections of the Board materials pertaining to the responsibilities of
BISYS, and (vi) performing such other Board meeting functions as
agreed by the parties.
BISYS shall perform such other services for the Trust that are mutually
agreed upon by the parties from time to time. Such services may include
performing internal audit examinations; mailing the annual reports of the Funds;
preparing an annual list of Shareholders; and mailing notices of Shareholders'
meetings, proxies and proxy statements, for all of which the Trust will pay such
fees as may be mutually agreed upon, including BISYS's out-of-pocket expenses.
3. Allocation of Charges and Expenses
(a) The Administrator. BISYS shall furnish at its own expense the
executive, supervisory and clerical personnel necessary to perform its
obligations under this Agreement. BISYS 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 and Trustees of the
Trust who are affiliated persons of BISYS or any affiliated
corporation of BISYS; provided, however, that unless otherwise
specifically provided, BISYS shall not be obligated to pay the
compensation of any employee of the Trust retained by the Board 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 Trustees who are
not affiliated persons of BISYS or any affiliated corporation of BISYS
(fees for other "interested Trustees" may be paid by parties other
than the Trust), insurance, interest, brokerage costs, litigation and
other extraordinary or nonrecurring expenses, and all fees and charges
of investment advisers.
4. Compensation of the Administrator
(a) Administration Fee. For the services to be rendered, the facilities
furnished and the expenses assumed by BISYS pursuant to this
Agreement, the Trust shall pay monthly to BISYS compensation at an
annual rate of fifteen one hundredths of one percent (0.15%, or 15
basis points) of the average daily net assets of the Trust. In
addition to the foregoing, the Trust shall also reimburse BISYS for
all of its reasonable
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out-of-pocket expenses, including, but not limited to, travel and
lodging expenses incurred by officers and employees of BISYS in
connection with attendance at (i) Board meetings and (ii) any other
meetings for which such attendance is requested or agreed upon by the
parties.
If this Agreement becomes effective subsequent to the first day of a
month or terminates in accordance with its terms before the last day
of a month, BISYS'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
BISYS's compensation for the preceding month shall be made promptly.
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.
5. Standard of Care; Uncontrollable Events; Limitation of Liability
BISYS shall use reasonable professional diligence to ensure the accuracy of
all services performed under this Agreement, but shall not be liable to the
Trust for any action taken or omitted by BISYS in the absence of bad faith,
willful misfeasance, negligence or reckless disregard by it of its obligations
and duties. The duties of BISYS shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against BISYS
hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Trust's reasonable request, BISYS shall provide supplemental information
concerning the aspects of its disaster recovery and business continuity plan
that are relevant to the services provided hereunder. Notwithstanding the
foregoing or any other provision of this Agreement, BISYS assumes no
responsibility hereunder, and shall not be liable for, any damage, loss of data,
delay or any other loss whatsoever caused by events beyond its reasonable
control. Events beyond BISYS' reasonable control include, without limitation,
force majeure events. Force majeure events include natural disasters, actions or
decrees of GOVERNMENTAL bodies, and communication lines failures that are not
the fault of either party. In the event of force majeure, computer or other
equipment failures or other events beyond its reasonable control, BISYS shall
follow applicable procedures in its disaster recovery and business continuity
plan and use all commercially reasonable efforts to minimize any service
interruption.
Neither party shall be liable for damages that would not reasonably be
considered as arising naturally, i.e., according to the usual course of things,
from a breach of this Agreement, or that would not reasonably be supposed to
have been in the contemplation of the parties, at the time they entered into
this Agreement, as the probable result of the breach of it, given industry
standards and other relevant factors.
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6. Activities of the Administrator
The services of BISYS rendered to the Trust are not to be deemed to be
exclusive. BISYS 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 BISYS, as
officers, employees or otherwise and that partners, officers and employees of
BISYS and its counsel are or may be or become similarly interested in the Trust,
and that BISYS may be or become interested in the Trust as a SHAREHOLDER or
otherwise.
7. Duration of this Agreement
This Agreement shall continue in effect for five (5) years, until November
30, 2008 (the "Initial Term"). Thereafter, unless otherwise terminated as
provided herein, this Agreement shall be renewed automatically for successive
one year periods ("Rollover Periods"). This Agreement may be terminated only (i)
by provision of a notice of non-renewal in the manner set forth below, (ii) by
mutual agreement of the parties, (iii) for "cause," as defined below, upon the
provision of sixty (60) days advance written notice by the party alleging cause,
or (iv) as provided in Schedule C (Service Standards). Written notice of
non-renewal must be provided at least sixty (60) days prior to the end of the
Initial Term or any Rollover Period, as the case may be.
For purposes of this Agreement, "cause" shall mean (a) a material breach of
this Agreement that has not been remedied for thirty (30) days following written
notice of such breach from the non-breaching party; (b) a final, unappealable
judicial, regulatory or administrative ruling or order in which the party to be
terminated has been found guilty of criminal or unethical behavior in the
conduct of its business; or (c) financial difficulties on the part of the party
to be terminated which are evidenced by the authorization or commencement of, or
involvement by way of pleading, answer, consent or acquiescence in, a voluntary
or involuntary case under Title 11 of the United States Code, as from time to
time is in effect, or any applicable law, other than said Title II, of any
jurisdiction relating to the liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors. BISYS shall not terminate
this Agreement pursuant to clause (a) above based solely upon the Trust's
failure to pay an amount to BISYS which is the subject of a good faith dispute,
if (i) the Trust is attempting in good faith to resolve such dispute with as
much expediency as may be possible under the circumstances, and (ii) the Trust
continues to perform its obligations hereunder in all other material respects
(including paying all fees and expenses not subject to reasonable dispute
hereunder).
Notwithstanding the foregoing, following any such termination, in the event
that BISYS in fact continues to perform any one or more of the services
contemplated by this Agreement with the consent of the Trust, the provisions of
this Agreement, including without limitation the provisions dealing with
indemnification, shall continue in full force and effect. Fees and out-of-pocket
expenses incurred by BISYS but unpaid by the Trust upon such termination shall
be immediately due and payable upon and notwithstanding such termination. BISYS
shall be entitled to collect from the Trust, in addition to the fees
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and disbursements provided by Section 4 hereof, the amount of all of BISYS' cash
disbursements up to a maximum amount of $50,000.00 in connection with BISYS'
activities in effecting such termination of this Agreement, including without
limitation, the delivery to the Trust and/or its distributor or investment
adviser and/or other parties of the Trust's property, records, instruments and
documents.
If, for any reason other than (i) non-renewal, (ii) mutual agreement of the
parties, (iii) "cause" for TERMINATION OF BISYS HEREUNDER, OR (IV) FAILURE to
meet service STANDARDS, AS PROVIDED IN SCHEDULE C, BISYS' SERVICES ARE
TERMINATED HEREUNDER, BISYS is REPLACED as ADMINISTRATOR, OR if a THIRD party is
added to PERFORM all or a part of THE SERVICES PROVIDED by BISYS UNDER THIS
AGREEMENT (excluding any Sub-Administrator appointed as provided in Section 9
hereof), then the Trust shall make a one-time cash payment, in consideration of
the fee structure and services to be provided under this Agreement, and not as a
penalty, to BISYS equal to seven one-hundredths of one percent (0.07%, or 7
basis points) of the monthly average aggregate asset levels of all Funds
(measured during the twelve (12) months prior to the date that services
terminate, BISYS is replaced or a third party is added) for the "Applicable
Period," as defined below. For these PURPOSES, the "Applicable Period" is
defined as (i) twenty-four (24) months, if the relevant event (i.e., BISYS is
terminated or replaced or a third party is added) occurs prior to December 1,
2005; (ii) eighteen (18) months, if the relevant event occurs on or after
December 1, 2005 but prior to December 1, 2006; (iii) twelve (12) months, if the
relevant event occurs on or after December 1, 2006 but prior to December 1,
2007; and (iv) the lesser of (a) six (6) months or (b) the number of months
remaining in the Initial Term, if the relevant event occurs on or after December
1, 2007.
In the event the Trust or any Fund is merged into another legal entity in
part or in whole pursuant to any form of business reorganization or is
liquidated in part or in whole prior to the expiration of the then-current term
of this Agreement, the parties ACKNOWLEDGE and agree that the LIQUIDATED damages
PROVISION set forth above shall be applicable in those instances in which BISYS
is not retained to provide administration services consistent with this
Agreement, including the level of assets subject to such services. The one-time
cash payment referenced above shall be due and payable on the day prior to the
first day in which services are terminated, BISYS is replaced or a third party
is added.
The parties further acknowledge and agree that, in the event services are
terminated, BISYS is replaced, or a third party is added, as set forth above,
(i) a determination of actual damages incurred by BISYS would be extremely
difficult, and (ii) the liquidated damages provision contained herein is
intended to adequately compensate BISYS for damages incurred and is not intended
to constitute any form of penalty.
8. Indemnification
The Trust agrees to indemnify and hold harmless BISYS, its employees,
agents, directors, officers and nominees from and against any and all claims,
demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs,
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charges, counsel fees and other expenses (including reasonable investigation
expenses) of every nature and character (collectively, "Losses") arising out of
or in any way relating to BISYS' actions taken or omissions with respect to the
performance of services under this Agreement or based, if applicable, upon
REASONABLE reliance on information, records, instructions or requests given or
made to BISYS by the Trust, the investment adviser, fund accountant, transfer
agent or custodian thereof; PROVIDED that this indemnification shall not apply
to actions or omissions of BISYS in cases of its own BAD faith, willful
misfeasance, negligence or reckless disregard by it of its obligations and
duties.
BISYS shall indemnify, defend, and hold the Trust harmless from and against
any and all Losses resulting directly and proximately from BISYS' willful
misfeasance, bad faith or negligence in the performance of its duties, or by
reason of reckless disregard of its obligations and duties hereunder.
Notwithstanding any provision of this Agreement that expressly or by
implication provides to the contrary, (a) it is expressly agreed and
acknowledged that BISYS cannot ensure that the Trust complies with
Xxxxxxxx-Xxxxx, and (b) if a BISYS employee serves as an employee/Executive
Officer (as defined in Schedule B) of the Trust, as long as such Executive
Officer acts in good faith and in a manner reasonably believed to be in the best
interests of the Trust (and would not otherwise be liable to the Trust by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office), the Trust shall indemnify
the Executive Officer and BISYS and hold the Executive Officer and BISYS
harmless from any loss, liability, expenses (including reasonable attorneys
fees) and damages incurred by them arising out of or resulting from the service
of such Employee/Executive Officer as a Certifying Officer (as defined in
Schedule B) or other executive officer of the Trust.
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, provided that any such advanced expenses shall be reimbursed by the
indemnified party if an ultimate determination is made that indemnification is
not merited under the circumstances. If in any case a 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 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 except to the extent the
indemnifying party is materially prejudiced thereby. As to any matter eligible
for indemnification, an indemnified party shall act reasonably and in accordance
with good faith business judgment and shall not effect any settlement or confess
judgment without the consent of the indemnifying party, which consent shall not
be unreasonably withheld or delayed.
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 it and reasonably satisfactory
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to the indemnified 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 suit, it will reimburse the indemnified party for the
reasonable fees and expenses of any counsel retained by the indemnified party.
The indemnity and defense provisions set forth herein shall indefinitely survive
the termination of this Agreement.
9. Assignment
This Agreement shall not be assignable by either party without the written
consent of the other party; PROVIDED, HOWEVER, that BISYS may, at its expense
and with the advance approval of the Board, subcontract with any entity or
person concerning the provision of administration services contemplated
hereunder (a "Sub-Administrator"). BISYS shall not, however, be relieved of any
of its obligations under this Agreement by the appointment of any
Sub-Administrator or other SUBCONTRACTOR and BISYS shall be responsible, to the
extent provided in Section 5 hereof, for all acts of any Sub-Administrator 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.
In the event that BISYS or its direct or indirect parent, directly or
indirectly merges with, or sells substantially all of its assets to, another
entity, BISYS agrees to provide the Trust a continuing high level of quality
service experienced personnel, and appropriate resources to properly service the
Trust, PROVIDED that nothing herein shall permit an assignment otherwise
prohibited by the provision of the first paragraph of this Section 9.
10. Information to be Furnished by the Trust and Funds.
The Trust has furnished to BISYS the following, as amended and current as
of the Effective Date:
(a) A copy of the Declaration of Trust of the Trust and of any amendments
thereto;
(b) A copy of the Trust's Bylaws and any amendments thereto;
(c) A certified list of all officers of the Trust, and any other persons
(who may be associated with the Trust or its investment advisor),
together with specimen signatures of those officers and other persons
who (except as otherwise provided herein to the contrary) shall be
authorized to instruct BISYS in all matters;
(d) The current Prospectuses and Statement of Additional Information;
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(e) A copy of the Fund DCP, as defined in Schedule B.
11. Information to be Furnished by BISYS.
Upon request, BISYS shall furnish an executive summary of the relevant
provisions of its internal policies on service of employees as executive
officers of funds ("BISYS Policies"), and any material amendments thereto, to
the Trust.
12. Amendments to Documents.
The Trust shall furnish BISYS written copies of any amendments to, or
changes in, any of the items referred to in Section 10 hereof forthwith upon
such amendments or changes becoming effective.
BISYS may rely on any amendments to or changes in any of the documents and
other items to be provided by the Trust pursuant to Sections 10 and 12 of this
Agreement and, subject to the provisions of Section 8 hereof, the Trust hereby
indemnifies and holds harmless BISYS from and against any and all claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every nature and character which may
result from actions or omissions on the part of BISYS in reasonable reliance
upon such amendments and/or changes. Although BISYS is authorized to rely on the
ABOVE-MENTIONED amendments to and changes in the documents and other items
referred to above, in the event the same relate to services provided by BISYS
hereunder, BISYS shall have no liability for failure to comply with or take any
action in conformity with such amendments or changes unless the Trust first
obtains BISYS's written consent to and approval of such amendments or changes.
13. Compliance with Laws.
Except as expressly provided herein, the Trust assumes full responsibility
for the preparation, contents, and distribution of its Prospectuses and Reports
in compliance with all applicable laws, rules and regulations of governmental
authorities having jurisdiction, and for managing its investment PORTFOLIOS,
DISTRIBUTING its SHARES and OTHERWISE OPERATING in compliance with all
APPLICABLE laws, INCLUDING BUT NOT limited to the 1940 Act.
14. CERTAIN RECORDS
BISYS 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 31 a-1 and 31a-2 under the 1940 Act which are prepared or
maintained by BISYS on behalf of the Trust shall be prepared and maintained at
the expense of BISYS, but shall be the property of the Trust and will be
surrendered promptly to the Trust on request, and made available for inspection
by the Trust or by the Securities and Exchange Commission (the "Commission") at
reasonable times.
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BISYS may at its option at any time, and shall promptly upon the Trust's
demand, turn over to the Trust and cease to retain BISYS' files, records and
documents created and maintained by BISYS pursuant to this Agreement which are
no longer needed by BISYS in the performance of its services or for its legal
protection. If not so turned over TO the Trust, SUCH DOCUMENTS AND RECORDS SHALL
be RETAINED BY BISYS FOR six YEARS from THE year OF CREATION. At THE end of such
six-year PERIOD, SUCH RECORDS and DOCUMENTS SHALL BE TURNED OVER to the Trust
UNLESS the Trust AUTHORIZES in WRITING the DESTRUCTION OF such records and
documents.
In case of any request or demand for the inspection of such records by
another party, BISYS shall notify the Trust and follow the Trust's instructions
as to permitting or refusing such inspection; provided that BISYS may exhibit
such records in any case where (i) disclosure is required by law, (ii) BISYS is
advised by counsel that it may incur liability for failure to make a disclosure,
(iii) BISYS is requested to divulge such information by duly-constituted
authorities or court process, or (iv) BISYS is requested to make a disclosure by
the Trust. BISYS shall provide the Trust with reasonable advance notice of
disclosure pursuant to items (i) -- (iii) of the previous sentence, to the
extent reasonably practicable.
15. Insurance
BISYS shall maintain a fidelity bond covering larceny and embezzlement and
an insurance policy with respect to errors and omissions coverage in amounts
that are appropriate in light of its duties and responsibilities hereunder. Upon
the request of the Trust, BISYS shall provide evidence that coverage is in
place. BISYS shall notify the Trust should its insurance coverage with respect
to professional liability or errors and omissions coverage be canceled. Such
notification shall include the date of CANCELLATION and the reasons therefore.
BISYS shall notify the Trust of any material claims against it with respect to
services performed under this Agreement, whether or not they may be covered by
insurance, and shall notify the Trust SHOULD the TOTAL OUTSTANDING claims made
by BISYS under its insurance coverage materially impair, or threaten to
materially impair, the adequacy of its coverage.
16. Legal Advice: Reliance on Prospectus and Instructions
BISYS may apply to the Company at any time for instructions and may consult
with counsel for the Company and with accountants and other experts with respect
to any matter arising in connection with BISYS' duties, and BISYS shall not be
liable nor 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. BISYS shall notify the Trust at any time BISYS
believes that it is in need of the advice of counsel (other than counsel in the
regular employ of BISYS or any affiliated companies) with regard to BISYS'
responsibilities and duties pursuant to this Agreement. After so notifying the
Trust, BISYS, at its discretion, shall be entitled to seek, receive and act upon
advice of legal counsel of its choosing, such advice to be at the expense of the
Trust
12
unless relating to a matter involving BISYS' willful misfeasance, bad faith,
negligence or reckless disregard of BISYS' responsibilities and duties.
As to the services to be provided HEREUNDER, BISYS may rely CONCLUSIVELY
UPON THE terms of the PROSPECTUSES and Statement of ADDITIONAL INFORMATION OF
THE TRUST RELATING to the RELEVANT FUNDS to THE extent THAT such SERVICES are
DESCRIBED therein, as well as the minutes of Board meetings (if applicable) and
other records of the Trust unless BISYS receives written instructions to the
contrary in a timely manner from the Trust.
Also, BISYS 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.
17. Notice
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, to Performance Funds Trust; Attn:
Xxxxxx Xxxxxx, at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, and if to BISYS,
at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000; Attn: President, or at such other
address as such party may from time to time specify in writing to the other
party pursuant to this Section.
18. Governing Law and Matters Relating to the Trust as a Delaware Trust
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. It is
expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents or
employees of the Trust personally, but shall bind only the trust property of the
Trust. The execution and delivery of this Agreement have been authorized by the
Trustees, and this Agreement has been signed and delivered BY an AUTHORIZED
officer of THE Trust, ACTING as SUCH, AND neither SUCH AUTHORIZATION BY the
Trustees nor such execution and delivery by such officer shall be deemed to have
been made by any of them individually or to impose any liability on them
personally, but shall bind only the trust property of the Trust as provided in
the Trust's Declaration of Trust.
19. Representations and Warranties
The Trust represents and warrants to BISYS that this Agreement has been
duly authorized by the Trust and, when executed and delivered by the Trust, will
constitute a legal, valid and binding obligation of the Trust, enforceable
against the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium
13
and other laws of general application affecting the rights and remedies of
creditors and SECURED parties.
BISYS REPRESENTS AND WARRANTS THAT: (A) THE VARIOUS PROCEDURES AND SYSTEMS
WHICH BISYS HAS IMPLEMENTED WITH regard to safekeeping from loss or damage
attributable to fire, theft or any other cause of the BLANK CHECKS, RECORDS, AND
OTHER DATA of the Trust and BISYS' records, data, equipment, facilities and
other property used in the performance of its obligations hereunder are adequate
and that it will make such changes therein from time to time as are reasonably
required for the secure performance of its obligations hereunder; and (b) this
Agreement has been duly authorized by BISYS and, when executed and delivered by
BISYS, will constitute a legal, valid and binding obligation of BISYS,
enforceable against BISYS in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the right and remedies of creditors and secured parties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
20. Privacy
Nonpublic personal financial information relating to consumers or customers
of the Trust provided by, or at the direction of the Trust to BISYS, or
collected or retained by BISYS in the course of performing its duties shall be
considered confidential information. BISYS shall not give, sell or in any way
transfer such confidential information to any person or entity, other than
affiliates of BISYS except at the direction of the Trust or as required or
permitted by law. BISYS represents, warrants and agrees that it has in place and
will maintain physical, electronic and procedural SAFEGUARDS reasonably designed
to protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of records and information relating to consumers
or customers of the Trust. The Trust represents to BISYS that it has adopted a
Statement of its privacy policies and practices as required by the Commission's
Regulation S-P and agrees to provide BISYS with a copy of that statement
annually.
21. Miscellaneous
(a) Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties
hereto as to the subject matter covered by this Agreement, and
supercedes all
14
prior negotiations, understandings and agreements bearing upon the
subject matter covered herein, including, without limitation, the 1996
Agreement and all amendments thereof.
(c) This Agreement may be executed in counterparts, each of which shall be
an original but all of which, taken together, shall constitute one and
the same agreement.
(d) No amendment to this Agreement shall be valid unless made in writing
and executed by both parties hereto. The parties hereto may amend such
procedures as may be set forth herein by written agreement as may be
appropriate or practical under the circumstances, and BISYS may
conclusively assume that any special procedure which has been approved
by an executive officer of the Trust (other than an officer or
employee of BISYS) does not conflict with or violate any requirements
of the Trust's Declaration of Trust, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory
body.
(e) 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 Commission.
* * * *
15
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/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Executive V.P.
16
SCHEDULE A
ADMINISTRATION AGREEMENT
BETWEEN
PERFORMANCE FUNDS TRUST
AND BISYS FUND SERVICES OHIO, INC.
FUNDS
Performance Money Market Fund Class A
Performance Money Market -- Class B
Performance Money Market Fund -- Institutional Class
Performance Short Term Government Income Fund Class A
Performance Short Term Government Income Fund -- Institutional
Performance Intermediate Term Income Fund Class A
Performance Intermediate Term Income Fund Class B
Performance Intermediate Term Income Fund -- Institutional
Performance Mid Cap Equity Fund -- Class A
Performance Mid Cap Equity Fund -- B Class
Performance Mid Cap Equity Fund -- Institutional Class
Performance Large Cap Equity Fund -- Class A
Performance Large Cap Equity Fund -- B Class
Performance Large Cap Equity Fund -- Institutional Class
Performance Leaders Equity Fund -- A Class
Performance Leaders Equity Fund -- B Class
Performance Leaders Equity Fund -- Institutional
Performance Advisor Growth Portfolio Class C
Performance Advisor Moderate Portfolio Class C
Performance Advisor Conservative Portfolio Class C
17
SCHEDULE B
ADMINISTRATION AGREEMENT
BETWEEN
PERFORMANCE FUNDS TRUST
AND BISYS FUND SERVICES OHIO, INC.
SUPPLEMENTAL SERVICE PROVISIONS,
To assist the Trust in connection with its obligations under Sections 302
and 906 of the Sarbanes Oxley Act of 2002 and Rule 30a-2 under the 1940 Act
(collectively, with such other related regulatory provisions applicable to the
Trust, "Xxxxxxxx-Xxxxx"), BISYS will internally establish and maintain controls
and procedures ("BISYS internal controls") designed to ensure that information
recorded, processed, summarized, or reported by BISYS and its affiliates on
behalf of the Trust and included in financial information certified by Trust
officers ("Certifying Officers") on Form N-CSR ("Reports") is (a) recorded,
processed, summarized, and reported by BISYS within the time periods specified
in the Commission's rules and forms and the corresponding disclosure controls
and procedures of the Funds ("Fund DCPs"), and (b) accumulated and communicated
to the relevant Certifying Officers consistent with the Fund DCPs.
If requested by Certifying Officers with respect to a fiscal period during
which BISYS serves or served as financial administrator, BISYS will provide a
sub-certification consistent with the requirements of Xxxxxxxx-Xxxxx pertaining
to BISYS' services. In rendering such sub-certifications concerning Fund
Reports, BISYS may (a) limit its representations to information prepared,
processed and reported by BISYS; (b) rely upon and assume the accuracy of the
information provided by officers and other authorized agents of the Funds,
including any other service providers to the Funds (other than BISYS and its
affiliates) and compliance by such officers and agents with the Fund DCPs,
including but not limited to, each Fund's investment adviser(s) and custodian;
and (c) assume that the Trust has selected the appropriate accounting policies
for the Funds.
The Trust shall assist and cooperate with BISYS (and shall cause its
officers, investment advisers and other service providers to assist and
cooperate with BISYS) to facilitate the delivery of information requested by
BISYS in connection with the preparation of the Fund's Form N-CSR, including
Fund financial statements, so that BISYS may submit a draft Report to the Funds'
Disclosure Controls and Procedures Committee ("Fund DCP Committee") at least ten
(10) days prior to the date the relevant Report is to be filed. The relevant
Certifying Officers and the Chief Legal Officer of the Fund shall be deemed to
constitute the Fund DCP Committee in cases in which no other
18
Fund DCP Committee has been designated or is operative. In connection with its
review and evaluations, the Fund DCP Committee shall establish a schedule to
ensure that all required disclosures in Form N-CSR and in the financial
statements for the Fund are identified and prepared in a timeframe sufficient to
allow review by the Fund DCP Committee. At the request of the Trust or its
Certifying Officers, BISYS shall provide reasonable administrative assistance to
the Trust in connection with obtaining service PROVIDER SUB-CERTIFICATIONS AND
SAS-70 reports on internal controls, and in preparing summaries of issues raised
in such documents.
The Trust recognizes its obligation to comply with Xxxxxxxx-Xxxxx. Without
limitation of the foregoing, the Trust shall maintain responsibility for, and
shall support and facilitate the role of each Certifying Officer and the Fund
DCP Committee in, designing and maintaining the Fund DCPs in accordance with
applicable laws, including (a) ensuring that the Fund DCP Committee and/or
Certifying Officers obtain and review sub-certifications and reports on internal
controls from the Fund's investment adviser(s) and other service providers, if
any, sufficiently in advance of the date upon which the relevant financial
statements must be finalized by BISYS (in order to print, distribute and/or file
the same), and (b) evaluating the effectiveness of the design and operation of
the Fund DCP, with (at the Trust's election) the participation of the Certifying
Officers, within the requisite timeframe prior to the filing of each Report.
The Trust agrees and acknowledges that BISYS Policies are applicable to the
service of any BISYS employee as a Certifying Officer or as Chief Legal Officer
of the Trust (an "Employee/Executive Officer"), and that to the extent this
service is rendered by BISYS it is limited, in each case, to providing an
Employee/Executive Officer who, in the exercise of his or her duties to the
Trust, shall act in good faith and in a manner reasonably believed by him or her
to be in the best interests of the Trust. BISYS shall select, and may replace,
the specific employee that it makes available to serve in the designated
capacity as an Employee/Executive Officer, in BISYS' reasonable discretion,
taking into account such person's responsibilities concerning, and familiarity
with, the Trust's operations.
BISYS' provision of each Employee/Executive Officer is also subject to, and
conditioned upon, the following:
(a) The Fund DCPs shall contain (or the Trust and BISYS shall otherwise
establish) mutually agreeable procedures governing the certification
process, and the parties shall comply with such procedures in all
material respects. Among other things, the procedures shall provide as
follows:
(i) The Trust shall establish and maintain a Fund DCP Committee
comprised of persons including (at a minimum) the Trust's
Principal Executive Officer, Chief Financial Officer and Chief
Legal Officer and such other individuals as may be reasonably
necessary or appropriate for the Fund DCP Committee to ensure the
cooperation of, and to oversee, each of the Trust's agents that
records, processes, summarizes, or reports information contained
19
in Fund Reports (or other information from which such information
is derived), including the investment adviser and custodian
(each, a "Service Provider"). In connection therewith, the Fund
DCP Committee shall assist the Certifying Officers by requiring
that sub-certifications acceptable to the Certifying Officers be
provided by Service Providers.
(ii) The Fund DCP Committee shall (i) meet within 10 days before the
filing date of each Report to review the accuracy and
completeness of the relevant Report and (ii) record its
considerations and conclusions in a written memorandum sufficient
to support conclusions pertaining to Fund DCPs as required by
Item 9 of Form N-CSR. In conducting its review and evaluations,
the Fund DCP Committee shall:
A. establish a schedule to ensure that all required disclosures
in Form N-CSR, including the financial statements, for the
Fund are identified and prepared in a timeframe sufficient
to allow review;
B. review SAS 70 Reports pertaining to Service Providers, if
applicable, or in the absence of any such reports, consider
the adequacy of a sub-certification of the Service Provider.
In cases where the SAS 70 report is dated more than 90 days
prior to the issuance of a Report, the DCP Committee shall
request a written representation from the Service Provider
regarding the continued application and effectiveness of
internal controls described in the report, or descriptions
of any changes in internal control structure, as of the date
of the bring-down certification;
c. consider whether there are any significant deficiencies in
the design or operation of the Fund DCPs that could
adversely affect a Fund's ability to record, process,
summarize, and report financial data, and in the event that
any such deficiencies are identified, disclose them to the
Fund's Certifying Officers, the Fund's audit committee and
its auditors;
D. consider whether, to the knowledge of each member of the
Fund DCP Committee, there has been or may have been any
fraud, whether or not material, and in the event that any
such occurrence is identified, ensure that this has been
disclosed to the Certifying Officers and Chief Legal Officer
(collectively, the "Executive Officers"), so that the
Executive Officers may inform the Fund's audit committee and
its auditors; and
20
E. determine whether there were significant changes in internal
controls or in other factors that could significantly affect
internal controls subsequent to the date of the most recent
evaluation of internal controls, including any corrective
actions with regard to significant deficiencies and material
weaknesses, and if there were any, take all steps necessary
so that such changes and corrective actions are reflected in
the Report.
(b) The Trust's governing documents (such as its Agreement and Declaration
of Trust and By-Laws) and/or resolutions of its Board shall contain
mandatory indemnification provisions that are applicable to each
Employee/Executive Officer, and which are intended to have the effect
of fully indemnifying him or her and holding him or her harmless with
respect to any claims, liabilities and costs arising out of or
relating to his or her service as an Employee/Executive Officer in
good faith in a manner reasonably believed to be in the best interests
of the Trust, except to the extent he or she would otherwise be liable
to the Trust by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of his office, within the meaning of Section 17(h) of the 1940 Act.
(c) The Trust shall provide coverage to each Employee/Executive Officer
under its directors and officers liability policy that is appropriate
to the Employee/Executive Officer's role and title, and that is
consistent with coverage applicable to other executive
management-level officers;
(d) An Employee/Executive Officer that serves as a Certifying Officer
shall have the full discretion to decline to certify a particular
Report that fails to meet the standards set forth in the
Certification, to report matters involving fraud or other failure to
meet the standards of applicable law to the audit committee of the
Board, or in appropriate circumstances, to resign from his or her
position, in the event that he or she reasonably determines that there
has been or is likely to be (a) a material deviation from the BISYS
Policies, (b) a violation of Xxxxxxxx-Xxxxx or other applicable laws,
or (c) a material deviation by the Trust from the terms of this
Agreement governing the services of such Certifying Officer that is
not caused by such Certifying Officer or BISYS.
(e) Each Employee/Executive Officer that serves as a Certifying Officer
may, and the Trust shall, promptly notify BISYS of any issue, matter
or event that would be reasonably likely to result in any claim by the
Fund, the Fund's shareholders or any third party which involves an
allegation that any Report failed to meet the standards of applicable
laws or that any of the Trust's Certifying Officers failed to exercise
their obligations to the Fund in a manner consistent with
Xxxxxxxx-Xxxxx and other applicable laws.
21
SCHEDULE C
TO THE ADMINISTRATION AGREEMENT
BETWEEN
PERFORMANCE FUNDS TRUST
AND
BISYS FUND SERVICES OHIO, INC.
SERVICE STANDARDS
In the event that BISYS fails to perform the same service standard listed below
during any three (3) consecutive months, the Trust may provide a notice
requiring BISYS to cure said failure. In the event BISYS fails to perform
pursuant to the relevant standard in the month following receipt of such notice,
the Trust shall have the right, exercisable within the next thirty (30) days
only, to terminate this Agreement upon sixty (60) days' notice to BISYS.
For purposes of the foregoing, a "failure to perform" means a failure to meet
the service standard under the terms of the Agreement governing BISYS' Services,
for which BISYS would not be excused and for which BISYS would be responsible
under the Agreement (including, without limitation, under Articles 5 and 9).
The required performance level associated with a function will be measured by
dividing the total number of times that function was correctly performed during
the month by the total number of times that function occurred during the month.
BISYS will complete its review within 10 business days after receipt of source
reports.
22
