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EXHIBIT 23(H)(4)
SUB-ADMINISTRATION SERVICES AGREEMENT
THIS AGREEMENT is made as of _____________, 2000 by and among MONUMENT
SERIES FUND, a Delaware business trust (the "Fund"), MONUMENT SHAREHOLDER
SERVICES, INC., a Maryland Corporation ("Monument") and PFPC INC., a
Massachusetts corporation ("PFPC").
W I T N E S S E T H:
WHEREAS, Monument provides fund administration services to the Fund, an
open-end management investment company under the Investment Company Act of 1940,
as amended (the "1940 Act"); and
WHEREAS, Monument wishes to retain PFPC to provide sub-administration
services, to the Funds and PFPC wishes to furnish such services with respect to
the Fund's investment portfolios listed on Exhibit A attached hereto and made a
part hereof and as such Exhibit A may be amended from time to time (each, a
"Portfolio"); and
NOW, THEREFORE in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby the parties hereto
agree as follows:
1. DEFINITIONS AS USED IN THIS AGREEMENT.
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any person authorized by Monument or the
Fund to give Oral Instructions and Written Instructions hereunder.
An Authorized Person's scope of
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authority may be limited by setting forth such limitation in a
written document signed by the parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25%or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s), or as otherwise defined in
the 1940 Act.
(f) "Oral Instructions" mean oral instructions received by PFPC from
an Authorized Person or from a person reasonably believed by PFPC
to be an Authorized Person. Instructions received by PFPC via
electronic mail will be considered Oral Instructions.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act,
the CEA and all regulations under those laws. .
(i) "Shares" mean the shares of beneficial interest of any series or
class of the Fund.
(j) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. APPOINTMENT. Monument hereby appoints PFPC to act on Monument's behalf to
provide
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sub-administration services to each of the Portfolios in accordance with
the terms set forth in this Agreement. PFPC accepts such appointment and
agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. Monument has provided or, where applicable, will
provide PFPC with the following:
(a) a copy of the Fund's most recent effective registration
statement;
(b) a copy of each Portfolio's advisory agreement or
agreements;
(c) a copy of the distribution/underwriting agreement with
respect to each class of Shares representing an interest in
a Portfolio;
(d) a copy of each additional administration agreement with
respect to a Portfolio;
(e) a copy of each distribution and/or shareholder servicing
plan and agreement made in respect of the Fund or a
Portfolio; and
(f) copies (certified or authenticated, where applicable) of
any and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH GOVERNMENT RULES AND REGULATIONS. PFPC undertakes to
comply with all applicable requirements of the Securities Laws, and any
laws, rules and regulations of governmental authorities having
jurisdiction with respect to the duties to be performed by PFPC
hereunder. Except as specifically set forth herein, PFPC assumes no
responsibility for such compliance by Monument or the Fund or any other
entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or from a
person reasonably believed by PFPC to be
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an Authorized Person) pursuant to this Agreement. PFPC may assume that
any Oral Instructions or Written Instruction received hereunder is not in
any way inconsistent with the provisions of organizational documents or
this Agreement or of any vote, resolution or proceeding of the Fund's
Board of Trustees or of the Fund's shareholders, unless and until PFPC
receives Written Instructions to the contrary.
(c) Monument agrees to forward to PFPC Written Instructions
confirming Oral Instructions so that PFPC receives the Written
Instructions by the close of business on the same day that such Oral
Instructions are received. The fact that such confirming Written
Instructions are not received by PFPC or differ from the Oral
Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions or
PFPC's ability to rely upon such Oral Instructions. Where Oral
Instructions or Written Instructions reasonably appear to have been
received from an Authorized Person, PFPC shall incur no liability for
acting upon such Oral Instructions or Written Instructions provided that
PFPC's actions comply with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of Monument and/or the Fund. If PFPC is in doubt as
to any action it should or should not take, PFPC may request directions
or advice, including Oral Instructions or Written Instructions, from
Monument and/or the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any
question of law pertaining to any action it should or should not take,
PFPC may request that the Fund seek guidance from its counsel.
Alternatively, PFPC, at its own expense, may request advice from
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counsel of its own choosing (who may be counsel for Monument, the Fund,
the Fund's investment advisor or PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral Instructions or Written Instructions PFPC
receives from Monument and/or the Fund and the advice PFPC receives from
its own counsel, the parties will address the issue together and agree on
the appropriate course of action with the assistance of counsel and/or
the Fund's independent public accountants; provided that if the parties
are not able to agree on a course of action, PFPC may inform Monument of
such fact and rely upon and follow the advice of its own counsel.
(d) Protection of PFPC. PFPC shall be protected in any action
it takes or does not take in reliance upon directions or advice or Oral
Instructions or Written Instructions it receives from Monument and/or the
Fund or from counsel and which PFPC believes, in good faith based on
standards considered reasonable in the industry, to be consistent with
those directions or advice and Oral Instructions or Written Instructions.
Nothing in this section shall be construed so as to impose an obligation
upon PFPC (i) to seek such directions or advice or Oral Instructions or
Written Instructions, or (ii) to act in accordance with such directions
or advice or Oral Instructions or Written Instructions unless, under the
terms of other provisions of this Agreement, the same is a condition of
PFPC's properly taking or not taking such action.
7. RECORDS; VISITS. The books and records pertaining to the Fund and the
Portfolios which are in the possession or under the control of PFPC shall
be the property of the Fund. Monument,
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the Fund and Authorized Persons, shall have access to such books and
records at all times during PFPC's normal business hours. Upon the
reasonable request of Monument or the Fund, copies of any such books and
records shall be provided by PFPC to Monument, the Fund or to an
Authorized Person at Monument's expense (payable out of the assets of the
Fund). PFPC shall keep the following records:
(a) all books and records with respect to the Fund's books of
account, as required and consistent with the standards
presumed by the 1940 Act.
(b) records of each Portfolio's securities transaction.
8. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the others' business ("Confidential Information"). (For
clarification, this Section 8 relates only to the Confidential
Information of the Fund and PFPC.) Confidential Information shall include
(a) any data or information that is competitively sensitive material, and
not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finances,
operations, customer relationships, customer profiles, customer lists,
sales estimates, business plans, and internal performance results
relating to the past, present or future business activities of the Fund
or PFPC, their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them; (b) any scientific or
technical information, design, process, procedure, formula, or
improvement that is commercially valuable and secret in the sense that
its confidentiality affords the Fund or PFPC a competitive advantage over
its competitors; (c) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software, source
code,
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object code, flow charts, databases, inventions, know-how, and trade
secrets, whether or not patentable or copyrightable; and (d) anything
designated as confidential. Notwithstanding the foregoing, information
shall not be subject to such confidentiality obligations if it: (a) is
already known to the receiving party at the time it is obtained; (b) is
or becomes publicly known or available through no wrongful act of the
receiving party; (c) is rightfully received from a third party who, to
the best of the receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a third party
without restriction; (e) is required to be disclosed by the receiving
party pursuant to a requirement of a court order, subpoena, governmental
or regulatory agency or law (provided the receiving party will provide
the party whose information being disclosed written notice of such
requirement, to the extent such notice is permitted); (f) is relevant to
the defense of any claim or cause of action asserted against the
receiving party; or (g) has been or is independently developed or
obtained by the receiving party.
9. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses, fiscal
year summaries, and other audit-related schedules with respect to each
Portfolio. PFPC shall take all reasonable action in the performance of
its duties under this Agreement to assure that the necessary information
is made available to such accountants for the expression of their
opinion, as required by Monument or (upon request by Monument or the
Fund) the Securities Laws.
10. PFPC SYSTEM. To the extent PFPC has a prior legal right to such property,
PFPC shall retain title to and ownership of any and all data bases,
computer programs, screen formats, report
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formats, interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC in connection with the services provided by PFPC
hereunder.
11. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of equipment
failures, PFPC shall, at no additional expense to Monument or the Fund,
take reasonable steps to minimize service interruptions. PFPC shall have
no liability with respect to the loss of data or service interruptions
caused by equipment failure provided such loss or interruption is not
caused by PFPC's own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties or obligations under this Agreement.
12. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, Monument will pay to PFPC (out of the assets of
the Fund) a fee or fees as may be agreed to in writing by Monument, the
Fund and PFPC.
13. INDEMNIFICATION. Monument agrees to indemnify and hold harmless PFPC and
its affiliates (out of the assets of the Fund) from all taxes, charges,
expenses, assessments, claims and liabilities (including, without
limitation, attorneys' fees and disbursements and liabilities arising
under the Securities Laws and any state and foreign securities and blue
sky laws) arising directly or indirectly from any action or omission to
act which PFPC takes in connection with the provision of services
hereunder. Neither PFPC, nor any of its affiliates,
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shall be indemnified against any liability (or any expenses incident to
such liability) caused by PFPC's or its affiliates' own willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties and obligations under this Agreement. Any amounts payable under
this Section 13 shall be satisfied only against the relevant Portfolio's
assets and not against the assets of any other investment portfolio of
the Fund.
14. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty hereunder to take any action hereunder
except as specifically set forth herein or as may be specifically
agreed to by PFPC, Monument and the Fund in a written amendment
hereto. PFPC shall be obligated to exercise care and diligence in
the performance of its duties hereunder and to act in good faith
in performing services provided for under this Agreement. PFPC
shall be liable only for any damages arising out of PFPC's failure
to perform its duties under this Agreement to the extent such
damages arise out of PFPC's willful misfeasance, bad faith, gross
negligence or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for
losses beyond its control, including without limitation (subject
to Section 11), delays or errors or loss of data occurring by
reason of circumstances beyond PFPC's control, provided that PFPC
has acted in accordance with the standard set forth in Section
14(a) above; and (ii) PFPC shall not be under any duty or
obligation to inquire into and shall not be liable for the
validity or invalidity or authority or lack thereof of any Oral
Instruction or Written
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Instruction, notice or other instrument which conforms to the
applicable requirements of this Agreement, and which PFPC
reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or
not the likelihood of such losses or damages was known by PFPC or
its affiliates. Notwithstanding anything in this Agreement to the
contrary, PFPC's cumulative liability to Monument and the Fund for
all losses, claims, suits, controversies, breaches or damages for
any cause whatsoever (including but not limited to those arising
out of or related to this Agreement) and regardless of the form of
action or legal theory shall not exceed the fees received by PFPC
for services provided hereunder during the 12 months immediately
prior to the date of such loss or damage, unless such loss or
damage is finally determined by a state or federal court having
jurisdiction to have been proximately and directly caused by
PFPC's gross negligence.
(d) No party may assert a cause of action against PFPC or any of its
affiliates that allegedly occurred more than 12 months immediately
prior to the filing of the suit (or, if applicable, commencement
of mediation sessions or arbitration proceedings) alleging such
cause of action; except, however, that this proscription will not
apply (i) unless Monument or the Fund had knowledge of the
circumstances and accordingly knew or should have known of the
existence of the claim during that time period; (ii) if PFPC or
any of its affiliates withheld information from the party
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asserting the claim that would have been deemed material in the
decision to file a claim; (iii) if PFPC or any of its affiliates
employed delaying tactics that resulted in the passage of the time
period during which a claim would have been filed but for the
delaying tactics; or (iv) if, during the 12-month period following
the action giving rise to the claim, the party asserting the claim
notifies PFPC or any of its affiliates in writing of its intent to
commence a legal action once sufficient information has been
collected.
(e) In addition to any other protections afforded to PFPC herein, and
notwithstanding anything herein or otherwise to the contrary, in
no event will PFPC have any duty, responsibility or liability with
respect to or in connection with any action or omission of any
prior administrator (or sub-administrator) or accounting agent (or
sub-accounting agent) for the Fund.
(f) Each party shall have a duty to mitigate damages for which another
party may become responsible.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS. PFPC will
perform the following administration services with respect to each
Portfolio:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and Fund statistical
data as requested on an ongoing basis;
(iv) Prepare for execution and file the Fund's Federal and state tax
returns;
(v) Monitor each Portfolio's status as a regulated investment company
under Sub-chapter M of the Internal Revenue Code of 1986, as
amended;
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(vi) Prepare and file with the SEC the Fund's annual, semi-annual, and
quarterly shareholder reports;
(vii) Prepare, coordinate with the Fund's counsel and file with the SEC
Post-Effective Amendments to the Fund's Registration Statement,
prepare reports to the SEC including, the preparation and filing
of (i) semi-annual reports on Form N-SAR and (ii) Notices pursuant
to Rule 24f-2;
(viii) Assist in the preparation of notices of Annual or Special Meetings
of Shareholders and Proxy materials relating to such meetings;
(ix) Assist in obtaining the fidelity bond and directors' and
officers'/errors and omissions insurance policies for the Fund in
accordance with the requirements of Rule 17g-1 and 17d-1(d)(7)
under the 1940 Act as such bond and policies are approved by the
Fund's Board of Directors;
(x) Monitor the Fund's assets to assure adequate fidelity bond
coverage is maintained;
(xi) Draft agendas, resolutions and materials for quarterly and special
Board meetings;
(xii) Coordinate the preparation, assembly and mailing of Board
materials;
(xiii) Maintain the Fund's corporate calendar to assure compliance with
various filing and Board approval deadlines;
(xiv) Coordinate contractual relationships and communications between
the Fund and its contractual service providers; and
(xv) Monitor the Fund's compliance with the amounts and conditions of
each state qualification.
16. DURATION AND TERMINATION. This Agreement shall continue until terminated
by Monument (either unilaterally or pursuant to direction by the Board of
Trustees of the Fund) or by PFPC on ninety (90) days' prior written
notice to the other. In the event Monument or the Fund gives notice of
termination, all expenses associated with movement (or duplication) of
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records and materials and conversion thereof to a successor
administration services agent(s) (and any other service provider(s)), and
all trailing expenses incurred by PFPC, will be borne by Monument (out of
the assets of the Fund).
17. CHANGE OF CONTROL. Notwithstanding any other provisions of this
Agreement, in the event of an agreement to enter into a transaction that
would result in a Change of Control of the Fund's advisor or sponsor,
Monument's and the Fund's ability to terminate the Agreement pursuant to
Section 16 will be suspended from the time of such agreement until nine
months after the Change of Control.
18. NOTICES. Notices shall be addressed (a) if to PFPC, at 400 Bellevue
Parkway, Wilmington, Delaware 19809, Attention: President; (b) if to
Monument, at 7920 Norfolk Ave., Suite 500, Bethesda, MD 20814, Attention:
_______________; (c) if the Fund, at 7920 Norfolk Ave., Suite 500,
Bethesda, MD 20814, or (d) if to none of the foregoing, at such other
address as shall have been given by like notice to the sender of any such
notice or other communication by the receiving party. If notice is sent
by confirming telegram, cable, telex or facsimile sending device, it
shall be deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given three days after
it has been mailed. If notice is sent by messenger, it shall be deemed to
have been given on the day it is delivered.
19. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
20. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its
duties hereunder to
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any majority-owned direct or indirect subsidiary of PFPC or of The PNC
Financial Services Group, Inc. provided that PFPC gives Monument and the
Fund thirty (30) days' prior written notice of such assignment or
delegation.
21. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
23. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary, the
Fund agrees not to make any modifications to its registration
statement or adopt any policies which would affect materially the
obligations or responsibilities of PFPC hereunder without the
prior written approval of PFPC, which approval shall not be
unreasonably withheld or delayed.
(b) Except as expressly provided in this Agreement, PFPC hereby
disclaims all representations and warranties, express or implied,
made to Monument or the Fund or any other person, 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),
of any services or any goods provided incidental to services
provided under this Agreement. PFPC disclaims any warranty of
title or non-infringement except as otherwise set forth in this
Agreement.
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(c) This Agreement, including all exhibits, attachments and
appendices, embodies the entire agreement and understanding among
the parties and supersedes all prior agreements and understandings
relating to the subject matter hereof, provided that the parties
may embody in one or more separate documents their agreement, if
any, with respect to delegated duties. The captions in this
Agreement are included for convenience of reference only and in no
way define or delimit any of the provisions hereof or otherwise
affect their construction or effect. Notwithstanding any provision
hereof, the services of PFPC are not, nor shall they be, construed
as constituting legal advice or the provision of legal services
for or on behalf of Monument, the Fund or any other person.
(d) This Agreement shall be deemed to be a contract made in Delaware
and governed by Delaware law, without regard to principles of
conflicts of law.
(e) If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. This Agreement shall
be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
(f) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
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PFPC INC.
By:
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Title:
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MONUMENT SERIES FUND
By:
---------------------------------
Title:
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MONUMENT SHAREHOLDER SERVICES, INC.
By:
---------------------------------
Title:
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EXHIBIT A
PORTFOLIOS
THIS EXHIBIT A, dated as of ________ , 2000, is Exhibit A to that certain
Sub-Administration Services Agreement dated as of _______, 2000 among PFPC Inc.,
Monument Series Fund and Monument Shareholder Services, Inc. This Exhibit A
shall supercede all previous forms of Exhibit A.
Monument Internet Fund
Monument Medical Sciences Fund
Monument Telecommunications Fund
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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