ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 1st day of October, 2000, by and
between First Omaha Funds, Inc. (the "Company"), a Nebraska corporation, and SEI
Investments Mutual Funds Services (the "Administrator"), a Delaware business
trust.
WHEREAS, the Company is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of several series portfolios ("Portfolios"), each of which may
consist of one or more classes of shares of beneficial interest ("Shares"); and
WHEREAS, the Company desires the Administrator to provide, and the
Administrator is willing to provide, administrative and accounting services to
such Portfolios of the Company as listed on Schedule A attached hereto
("Schedule A"), and made a part of this Agreement, on the terms and conditions
hereinafter set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Company and the Administrator hereby agree as
follows:
ARTICLE 1. RETENTION OF THE ADMINISTRATOR. The Company hereby retains
the Administrator to act as the administrator of the Portfolios and to furnish
the Portfolios with accounting and administrative services as set forth in
Article 2 below. The Administrator hereby accepts such employment to perform the
duties set forth below. The Administrator shall, for all purposes herein, be
deemed to be an independent contractor.
ARTICLE 2. ADMINISTRATIVE AND ACCOUNTING SERVICES. The Administrator
shall perform or supervise the performance by others of accounting and
administrative services in connection with the operations of the Portfolios. The
Administrator shall provide the Directors of the Company with such reports
regarding investment performance and compliance with investment policies and
applicable laws, rules and regulations as they may reasonably request but shall
have no responsibility for supervising the performance of any investment adviser
or sub-adviser, including any investment adviser's or sub-adviser's compliance
with applicable investment policies and applicable laws, rules and regulations
governing investments of the Portfolios. The Administrator may sub-contract with
third parties to perform certain of the services to be performed by the
Administrator hereunder; provided, however, that the Administrator shall remain
principally responsible to the Company for the acts and omissions of such other
entities.
The Administrator shall provide the Company with administrative
services, regulatory reporting, fund accounting and related portfolio accounting
services, all necessary office space, equipment, personnel, compensation and
facilities (including facilities for Shareholders' and Directors' meetings) for
handling the affairs of the Portfolios and such other services as the Directors
may, from time to time, reasonably request and the Administrator shall, from
time to time, reasonably determine to be necessary to perform its obligations
under this Agreement. In addition, as reasonably requested by the Company's
Board of Directors (the "Directors"), the Administrator shall make reports to
the Directors concerning the performance of its obligations hereunder.
Without limiting the generality of the foregoing, with respect to each
Portfolio, the Administrator shall:
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(A) calculate contractual expenses and control all disbursements and,
as appropriate, compute the yields, total return, expense ratios,
portfolio turnover rate and, if required, portfolio average
dollar-weighed maturity;
(B) coordinate with Company counsel in connection with the
preparation of prospectuses, statements of additional
information, registration statements, and proxy materials;
(C) prepare such reports, applications and documents (including
reports regarding the sale and redemption of Shares as may be
required in order to comply with Federal and state securities
law) as may be necessary or desirable to register the Shares with
state securities authorities, monitor sale of Shares for
compliance with state securities laws, and file with the
appropriate state securities authorities the registration
statements and reports for the Company and the Shares and all
amendments thereto, as may be necessary or convenient to register
and keep effective the Company and Shares with state securities
authorities to enable the Company to make a continuous offering
of its Shares;
(D) assist with the development and preparation of communications to
shareholders, including the annual reports to shareholders,
coordinate mailing prospectuses, notices, proxy statements,
proxies and other reports to shareholders, and supervise and
facilitate the solicitation of proxies solicited by the Company
for all shareholder meetings, including tabulation process for
shareholder meetings;
(E) coordinate with Company counsel the preparation and, where
appropriate, negotiation of contracts on behalf of the Company
with, among others, the Company's transfer agent, investment
adviser, sub-adviser, distributor, independent accountants, and
custodian;
(F) maintain the general ledger and prepare the financial statements,
including expense accruals and payments, determine the net asset
value of the assets and of the Shares;
(G) calculate performance data for dissemination to information
services covering the investment company industry;
(H) coordinate and supervise the preparation and filing of tax
returns;
(I) coordinate the Company's board of director's schedule, agenda and
production of board meeting materials
(J) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout and printing
of semi-annual and annual reports to shareholders;
(K) assist with the ongoing design, development, and operation of the
Company, including new portfolio and class investment objectives,
policies and structure;
(L) provide individuals acceptable to the Directors for nomination,
appointment, or election as officers of the Company, who will be
responsible for the management of certain of the Company's
affairs as determined by the Directors;
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(M) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Company
in accordance with the requirements of Rule 17g-1 and paragraph
(d)(7) of Rule 17d-l under the 1940 Act as such bonds and
policies are approved by the Company's Board of Directors;
(N) monitor on a secondary basis the regulated investment company
status of the Company and its Portfolios under the Internal
Revenue Code of 1986, as amended; and
(O) prepare and file with the SEC the semi-annual report for the
Company on Form NSAR and all required notices pursuant to Rule
24f-2.
Also, the Administrator will perform other services for the Company as agreed
from time to time, including, but not limited to performing secondary portfolio
compliance monitoring and reporting on a trade date plus two day basis; internal
audit examinations; mailing the annual reports of the Portfolios; preparing an
annual list of shareholders; and mailing notices of shareholders' meetings,
proxies and proxy statements, for all of which the Company will pay the
Administrator's reasonable out-of-pocket expenses.
In meeting its duties hereunder, Administrator shall have the general authority
to do all acts deemed in the Administrator's good faith belief to be necessary
and proper to perform its obligations under this Agreement.
ARTICLE 3. ALLOCATION OF CHARGES AND EXPENSES.
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(A) THE ADMINISTRATOR. The Administrator shall furnish at its own
expense the executive, supervisory and clerical personnel necessary to perform
its obligations under this Agreement. The Administrator shall also pay all
compensation, if any, of officers of the Company as well as all Directors of the
Company who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Company retained by the Directors of the
Company to perform services on behalf of the Company.
(B) COMPANY EXPENSES. The Company assumes and shall pay or cause to be
paid all other expenses of the Company not otherwise allocated in this
Agreement, including, without limitation, organizational 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 pricing services, the costs of custodial services, the cost
of initial and ongoing registration of the Shares under Federal and state
securities laws, fees and out-of-pocket expenses of Directors who are not
affiliated persons of the Administrator or the investment adviser to the Company
or any affiliated corporation of the Administrator or the investment adviser,
the costs of Directors' meetings, insurance, interest, brokerage costs,
litigation and other extraordinary or nonrecurring expenses, and all fees and
charges of service providers to the Company. The Company shall also reimburse
the Administrator for its reasonable out-of-pocket expenses, including the
travel and lodging expenses incurred by its officers and employees in connection
with attendance at meetings of the Company's Board of Directors and all
reasonable charges for copying, postage, telephone, fax, telecommunication and
computer lines incurred by the Administrator in the performance of its duties.
ARTICLE 4. COMPENSATION OF THE ADMINISTRATOR. For the services to be
rendered, the facilities furnished and the expenses assumed by the Administrator
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pursuant to this Agreement, the Company shall pay to the Administrator
compensation at an annual rate specified in Schedule A to this Agreement. Such
compensation shall be calculated and accrued daily, and paid to the
Administrator monthly. If this Agreement becomes effective subsequent to the
first day of a month or terminates before the last day of a month, the
Administrator's compensation for that part of the month in which this Agreement
is in effect shall be prorated in a manner consistent with the calculation of
the fees as set forth above. Payment of the Administrator's compensation for the
preceding month shall be made promptly.
ARTICLE 5. LIMITATION OF LIABILITY OF THE ADMINISTRATOR. The duties of
the Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Administrator
hereunder. The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any investment or for any act or
omission in carrying out its duties hereunder, except a loss resulting from
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder. (As used in this Article 5, the term "Administrator" shall include
directors, officers, employees and other agents of the Administrator as well as
that entity itself.) Under no circumstances shall the Administrator be liable to
the Company for consequential, indirect or punitive damages.
So long as the Administrator, or its agents, acts without willful
misfeasance, bad faith or gross negligence in the performance of its duties, or
reckless disregard of its obligations and duties hereunder, the Company assumes
full responsibility and shall indemnify the Administrator and hold it harmless
from and against any and all actions, suits and claims, whether groundless or
otherwise, and from and against any and all losses, damages, costs, charges,
reasonable counsel fees and disbursements, payments, expenses and liabilities
(including reasonable investigation expenses) arising directly or indirectly out
of administration, accounting, and dividend disbursing relationships to the
Company under this Agreement or any other service rendered to the Company
hereunder. The indemnity and defense provisions set forth herein shall
indefinitely survive the termination of this Agreement.
The rights hereunder shall include the right to reasonable advances of
defense expenses in the event of any pending or threatened litigation with
respect to which indemnification hereunder may ultimately be merited. In order
that the indemnification provisions contained herein shall apply, however, it is
understood that if in any case the Company may be asked to indemnify or hold the
Administrator harmless, the Company shall be fully and promptly advised of all
pertinent facts concerning the situation in question, and it is further
understood that the Administrator will use all reasonable care to identify and
notify the Company promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification against
the Company, but failure to do so shall not affect the rights hereunder. In no
event and under no circumstances shall either party to this Agreement be liable
to anyone, including, without limitation, the other party, for consequential
damages for any act or failure to act under any provision of this Agreement if
advised of the possibility thereof.
The Company 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 Company elects to assume the defense
of any such claim, the defense shall be conducted by counsel chosen by the
Company and satisfactory to the Administrator, whose approval shall not be
unreasonably withheld. In the event that the Company elects to assume the
defense of any suit and retain counsel, the Administrator shall bear the fees
and expenses of any additional counsel retained by it. If the Company does not
elect to assume the defense of a suit, it will reimburse the Administrator for
the fees and expenses of any counsel retained by the Administrator.
<PAGE>
The Administrator may apply to the Company at any time for instructions
and may consult counsel for the Company or its own counsel and with accountants
and other experts with respect to any matter arising in connection with the
Administrator's duties, and the Administrator shall not be liable or accountable
for any action taken or omitted by it in good faith in accordance with such
instruction or with the opinion of such counsel, accountants or other experts.
Also, the Administrator shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. Nor shall the Administrator be held to have
notice of any change of authority of any officers, employee or agent of the
Company until receipt of written notice thereof from the Company.
ARTICLE 6. ACTIVITIES OF THE ADMINISTRATOR. The services of the
Administrator rendered to the Company are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that Directors, officers, employees
and Shareholders of the Company are or may be or become interested in the
Administrator, as directors, officers, employees and shareholders or otherwise
and that directors, officers, employees and shareholders of the Administrator
and its counsel are or may be or become similarly interested in the Company, and
that the Administrator may be or become interested in the Company as a
Shareholder or otherwise.
ARTICLE 7. CONFIDENTIALITY. The Administrator agrees on behalf of itself
and its employees to treat confidentially all records and other information
relative to the Company and its prior, present or potential Shareholders and
their prior, present or potential customers, except, after prior notification to
and approval in writing by the Company, which approval shall not be unreasonably
withheld and may not be withheld where the Administrator may be exposed to civil
or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when so requested
by the Company. Further, the Company acknowledges that it has access to
confidential information about the Administrator's business and operations and
the Company and its affiliates agree to hold such information in strict
confidence, and not to disclose confidential information to any third-party
except as required by law or where Company may be exposed to civil or criminal
contempt proceedings for failure to comply with disclosure.
ARTICLE 8. EQUIPMENT FAILURES. In the event of equipment failures beyond
the Administrator's control, the Administrator shall, at no additional expense
to the Company, take reasonable and prompt steps to minimize service
interruptions but shall have no liability with respect thereto. The
Administrator shall develop and maintain a plan for recovery from equipment
failures which may include contractual arrangements with appropriate parties
making reasonable provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available.
ARTICLE 9. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS. The
Administrator undertakes to comply in all material respects with all applicable
requirements of the 1933 Act, the 1934 Act, the 1940 Act and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
duties to be performed by the Administrator hereunder.
ARTICLE 10. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement
shall become effective on the date set forth in the Schedule A and shall remain
in effect for the initial term of the Agreement (the "Initial Term") and each
renewal term thereof (each, a "Renewal Term"), each as set forth in Schedule A,
unless terminated in accordance with the provisions of this Article 10. This
Agreement may be terminated only: (a) by either party at the end of the Initial
Term or the end of any Renewal Term on 90 days' prior written notice; (c) by
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either party hereto on such date as is specified in written notice given by the
terminating party, in the event of a material breach of this Agreement by the
other party, provided the terminating party has notified the other party of such
breach at least 45 days prior to the specified date of termination and the
breaching party has not remedied such breach by the specified date; (d)
effective upon the liquidation of the Administrator; or (e) as to any Portfolio
or the Company, effective upon the liquidation of such Portfolio or the Company,
as the case may be. For purposes of this Article 10, the term "liquidation"
shall mean a transaction in which the assets of the Administrator, the Company
or a Portfolio are sold or otherwise disposed of and proceeds therefrom are
distributed in cash to the shareholders in complete liquidation of the interests
of such shareholders in the entity.
This Agreement shall not be assignable by the Administrator, without the
prior written consent of the Company, except to an entity that is controlled by,
or under common control with, the Administrator.
ARTICLE 11. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the
entire agreement between the parties hereto and supersedes any prior agreement,
draft or proposal with respect to the subject matter hereof. This Agreement or
any part hereof may be changed or waived only by an instrument in writing signed
by the party against which enforcement of such change or waiver is sought.
ARTICLE 12. CERTAIN RECORDS. The Administrator shall maintain customary
records in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by the Administrator
on behalf of the Company shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Company and will be made
available to or surrendered promptly to the Company on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Company and follow the
Company's instructions as to permitting or refusing such inspection; provided
that the Administrator may exhibit such records to any person in any case where
it is advised by its counsel that it may be held liable for failure to do so,
unless (in cases involving potential exposure only to civil liability) the
Company has agreed to indemnify the Administrator against such liability.
ARTICLE 13. DEFINITIONS OF CERTAIN TERMS. The terms "interested person"
and "affiliated person," when used in this Agreement, shall have the respective
meanings specified in the 1940 Act and the rules and regulations thereunder,
subject to such exemptions as may be granted by the Securities and Exchange
Commission.
ARTICLE 14. NOTICE. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, federal express (or substantially similar delivery service),
postage prepaid, addressed by the party giving notice to the other party at the
last address furnished by the other party to the party giving notice: if to the
Company, at One First National Center, Omaha, Nebraska 68102; and if to the
Administrator at One Freedom Valley Drive, Oaks, Pennsylvania, 19456.
ARTICLE 15. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Delaware and the applicable provisions
of the 1940 Act. To the extent that the applicable laws of the State of
Delaware, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control.
<PAGE>
ARTICLE 16. MULTIPLE ORIGINALS. This Agreement may be executed in two or
more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
ARTICLE 17. BINDING AGREEMENT. This Agreement, and the rights and
obligations of the parties and the Portfolios hereunder, shall be binding on,
and inure to the benefit of, the parties and the Portfolios and the respective
successors and assigns of each of them.
ARTICLE 18. SEVERABILITY. If any part, term or provision of this
Agreement is held to be illegal, in conflict with any law or otherwise invalid,
the remaining portion or portions shall be considered severable and not be
affected, and the rights and obligations of the parties shall be construed and
enforced as if the Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
FIRST OMAHA FUNDS, INC.
By:/s/ D. P. GREER
Attest:______________________
SEI INVESTMENTS MUTUAL FUNDS SERVICES
By:/s/ TIMOTHY BARTO
----------------------------
Attest:/s/ LAURIE BROOKS
----------------------------
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SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF OCTOBER 1,2000
BETWEEN
FIRST OMAHA FUNDS, INC.
AND
SEI INVESTMENTS MUTUAL FUNDS SERVICES
Portfolios: This Agreement shall apply to all Portfolios of the Company,
either now existing or in the future created. The following is a
listing of the current portfolios of the Company (collectively,
the "Portfolios"):
First Omaha U.S. Government Money Market Fund
First Omaha Short/Intermediate Fixed Income Fund
First Omaha Fixed Income Fund
First Omaha Balanced Fund
First Omaha Equity Fund
First Omaha Growth Fund
First Omaha Small Cap Value Fund
Fees: Pursuant to Article 4, the Company shall pay the Administrator
compensation for services rendered to the Portfolios at an annual
rate, which is calculated daily and paid monthly, of 0.20% of the
Company's average daily net assets.
The Company is subject to a minimum annual fee of $638,500,
applicable to the seven portfolios listed above, apportioned to
each portfolio as a percentage of its average monthly net assets.
The Company will be subject to an additional minimum fee at a
rate of $50,000 per additional portfolio, allocable among all of
the portfolios, in the event the Company adds any portfolios in
addition to the seven portfolios listed above. Additions of new
classes of shares to any portfolio will be subject to an
additional minimum fee at a rate of $15,000 per class, allocable
among all of the portfolios.
Term: This Agreement shall become effective on October 1, 2000 and
shall remain in effect for an Initial Term of three (3) years
from such date and, thereafter, for successive Renewal Terms of
one year each, unless and until this Agreement is terminated in
accordance with the provisions of Article 10 hereof.
[END OF SCHEDULE A]
