XXXXXX XXXX GLOBAL OPPORTUNISTIC EQUITY FUND
CO-ADMINISTRATION AGREEMENT
Gentlemen or Madams:
Xxxxxx Xxxx Investment Funds, a business trust organized under the law
of The Commonwealth of Massachusetts ("we" or the "Trust") hereby invite Bank
Xxxxxx Xxxx & Co., Ltd., New York branch ("you"), on behalf of Xxxxxx Xxxx
International Equity Fund (the "Fund") and subject to the terms and conditions
set forth below, to enter into this Co-Administrative Agreement (the
"Agreement") to serve as the administrative and shareholder servicing agent of
the shareholders of the Fund ("Shareholders") for purposes of performing certain
administrative and shareholder servicing functions in connection with purchases
and redemptions of Class A shares of beneficial interest of the Fund ("Shares"),
from time to time upon the order and for the account of Shareholders, and to
provide related services to Shareholders in connection with their investments in
the Fund.
1. APPOINTMENT. You hereby agree to perform certain services for
Shareholders as hereinafter set forth. Your appointment hereunder is
non-exclusive, and the parties recognize and agree that, from time to time, the
Fund may enter into other shareholder servicing agreements with other parties.
2. SERVICES TO BE PERFORMED AS ADMINISTRATIVE AGENT FOR CLASS A
SHARES. Subject to the supervision and direction of the Board of Trustees of the
Trust, you undertake to perform the following administrative and shareholder
services to the extent that no other party is obligated to perform them on
behalf of the Fund and shareholders: (i) maintain shareholder accounts which
shall include name, address, taxpayer identification number, and number of
shares; (ii) prepare shareholder statements; (iii) prepare confirmations; (iv)
prepare shareholder lists when reasonably requested by us; (v) mail shareholder
communications, including, but not limited to, shareholder statements,
confirmations, prospectuses, statements of additional information, annual and
semi-annual reports and proxy statements (collectively, "Shareholder
Communications"); (vi) tabulate proxies; (vii) disburse dividends and other
distributions; (viii) withhold taxes on U.S. resident and non-resident accounts
where applicable; (ix) prepare and file U.S. Treasury Department Forms 1099 and
other appropriate forms required by applicable statutes, rules and regulations
resulting from your role hereunder; (x) furnish to the Board of Trustees
quarterly written reports which set out the amounts expended under the
Distribution and Shareholder Services Plans and the purposes for which those
expenditures were made; and (xi) provide such other similar services directly to
accounts as we may reasonably request to the extent you are permitted to do so
under applicable statutes, rules and regulations. You shall provide all
personnel and facilities necessary in order for you to perform one or more of
the functions described in this paragraph with respect to your Shareholders.
1
In performing all services under this Agreement, you shall act in
conformity with applicable law, the Trust's Master Trust Agreement and By-Laws,
and all amendments thereto, and the Trust's Registration Statement, as amended
from time to time.
3. FEES.
3.1. FEES FROM THE FUND. In consideration for the services
described in section 2 hereof and the incurring of expenses in connection
therewith, the Fund shall pay you a fee at an annual rate of up to 0.25% of the
average daily net asset value of all Shares owned by or for all Shareholders
with whom you maintain a servicing relationship, such fee to be paid in arrears
at the end of each calendar quarter.
Upon any termination of this Agreement before the end of a quarter, the
fee for such part of that quarter shall be prorated according to the proportion
that such period bears to the full quarterly period and shall be payable upon
the date of termination of this Agreement. For the purpose of determining fees
payable to the Adviser, the value of the Fund's net assets shall be computed at
the times and in the manner specified in the Trust's Registration Statement as
from time to time in effect.
3.2. FEES FROM SHAREHOLDERS. It is agreed that you may impose
certain conditions on Shareholders, in addition to or different from those
imposed by the Fund, such as requiring a minimum initial investment or charging
Shareholders direct fees for the same or similar services as are provided
hereunder by you. These fees may either relate specifically to your services
with respect to the Fund or generally cover services not limited to those with
respect to the Fund. You shall xxxx Shareholders directly for such fees. In the
event you charge Shareholders such fees, you shall make appropriate prior
written disclosure, in accordance with all applicable laws, to Shareholders both
of any direct fees charged to the Shareholder and of the fees received or to be
received by you from the Fund pursuant to section 3.1 of this Agreement. It is
understood, however, that in no event shall you have recourse or access to the
account of any shareholder of the Fund except to the extent expressly authorized
by law or by the Fund or by such shareholder for payment of any direct fees
referred to in this section 3.2.
4. SECURITY. You represent and warrant that, to the best of your
knowledge, the various procedures and systems which you have implemented
(including provision for twenty-four hours a day restricted access) with regard
to safeguarding from loss or damage attributable to fire, theft or any other
cause the Fund's records and other data and your records, data, equipment,
facilities and other property used in the performance of your obligations
hereunder are adequate and that you will make such changes therein from time to
time as in its judgment are required for the secure performance of your
obligations hereunder. The parties shall review such systems and procedures on a
periodic basis, and the Fund may from time to time specify the types of records
and other data of the Fund to be safeguarded in accordance with this section 4.
2
5. COMPLIANCE WITH LAWS; ETC. You shall comply with all
applicable federal and state laws and regulations, including securities laws.
You hereby agree to maintain all records required by law relating to
transactions on the Shares, and upon our request, or of the Fund, promptly make
such of these records available to us or the Fund's administrator as are
requested. In addition, you hereby agree to establish appropriate procedures and
reporting forms and/or mechanisms and schedules in conjunction with us and the
Fund's administrator, to enable the Fund to identify the location, type of, and
sales to all accounts opened and maintained by your Shareholders or by you on
behalf of your Shareholders. You represent and warrant to the Fund that the
performance of all its obligations hereunder will comply with all applicable
laws and regulations, the provisions of your charter documents and by-laws and
all material contractual obligations binding upon you. You furthermore
undertakes that you will promptly inform the Fund of any change in applicable
laws or regulations (or interpretations thereof) or in your charter or by-laws
or material contracts which would prevent or impair full performance of any of
your obligations hereunder.
6. REPORTS. To the extent requested by the Fund from time to
time, you agree that you will provide the Fund with a written report of the
amounts expended by you pursuant to this Agreement and the purposes for which
such expenditures were made. Such written reports shall be in a form
satisfactory to the Fund and shall supply all information necessary for the Fund
to discharge its responsibilities under applicable laws and regulations.
7. RECORD KEEPING.
7.1. SECTION 31(a), ETC. You shall maintain records in a form
acceptable to the Fund and in compliance with applicable laws. Such records
shall be deemed to be the property of the Fund and will be made available, at
the Fund's reasonable request, for inspection and use by the Fund,
representatives of the Fund and governmental authorities.
7.2. TRANSFER OF SHAREHOLDER DATA. In the event this Agreement
is terminated or a successor to you are appointed, you shall, at the expense of
the Fund, transfer to such designee as the Fund may direct a certified list of
the shareholders of the Fund serviced by you (with name, address and Social
Security number), a complete record of the account of each such shareholder and
the status thereof, and all other relevant books, records, correspondence and
other data established or maintained by you under this Agreement. In the event
this Agreement is terminated, you will use your best efforts to cooperate in the
orderly transfer of such duties and responsibilities, including assistance in
the establishment of books, records and other data by the successor.
7.3. SURVIVAL OF RECORD-KEEPING OBLIGATIONS. The
record-keeping obligations imposed in this section 7 shall survive the
termination of this Agreement.
8. FORCE MAJEURE. You shall not be liable or responsible for
delays or errors by reason of circumstances beyond its control, including, but
not limited to, acts of civil or military authority, national emergencies, labor
difficulties, fire, mechanical breakdown, flood
3
or catastrophe, Acts of God, insurrection, war, riots or failure of
communication or power supply.
9. STANDARD OF CARE
The Adviser shall exercise its best judgment in rendering the services
described above. The Adviser shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund in connection with the
matters to which this Agreement relates, provided that nothing herein shall be
deemed to protect or purport to protect the Adviser against any liability to the
Fund or its shareholders to which the Adviser would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties from reckless disregard by it of its obligations and
duties under this Agreement ("disabling conduct").
10. INDEMNIFICATION
The Fund will indemnify the Adviser against, and hold it harmless from,
any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from any claim, demand, action
or suit not resulting from disabling conduct by the Adviser. Indemnification
shall be made only following: (i) a final decision on the merits by a court or
other body before whom the proceeding was brought that the person to be
indemnified was not liable by reason of disabling conduct or (ii) in the absence
of such a decision, a reasonable determination, based upon a review of the
facts, that the person to be indemnified was not liable by reason of disabling
conduct by (a) the vote of a majority of a quorum of non-party trustees who are
not "interested persons" of the Trust or (b) an independent legal counsel in a
written opinion.
10.1. SURVIVAL OF INDEMNITIES. The indemnities granted by the
parties in this section 10 shall survive the termination of this Agreement.
11. INSURANCE. You shall maintain reasonable insurance coverage
against any and all liabilities which may arise in connection with the
performance of its duties hereunder. You shall provide information with respect
to the extent of such coverage upon our request.
12. NOTICES. All notices or other communications hereunder to
either party shall be in writing and shall be deemed sufficient if mailed to
such party at the address of such party set forth in this Agreement or at such
other address as such party may have designated by written notice to the other.
13. FURTHER ASSURANCES. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
14. TERM AND TERMINATION. This Agreement shall become effective on
November 15, 1999, and continue so long as such continuance is specifically
approved at least annually by (i) the Board of Trustees of the Trust or (ii) a
vote of a "majority" (as defined in the
4
Investment Company Act of 1940, as amended) of the Fund's outstanding voting
securities. This Agreement may be terminated upon not more than 60 days' nor
less than 30 days' notice to the Fund. Notwithstanding anything herein to the
contrary, this Agreement may not be assigned and shall terminate automatically
without notice to either party upon any assignment. Upon termination hereof, the
Fund shall pay such compensation as may be due you as of the date of such
termination.
15. CHANGES; AMENDMENTS. This Agreement may be changed or amended
only by written instrument signed by both parties.
16. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement has been executed on behalf of the Fund by the undersigned not
individually, but in the capacity indicated. This Agreement shall be effective
when accepted by you below.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement with respect to the services described in Section 2 between the
parties hereto.
18. WAIVER OF JURY TRIAL. The parties hereby waive the right to a
jury trial.
19. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the state of New York
without giving effect to the conflicts of laws principles thereof.
5
Please confirm your agreement hereto by signing and returning the
enclosed counterpart of this Agreement at once to: Xxxxxx Xxxx Investment Funds,
c/o Investors Bank & Trust Company, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000. Upon receipt thereof, this Agreement and such signed duplicate copy will
evidence the agreement between us.
XXXXXX XXXX GLOBAL OPPORTUNISTIC EQUITY FUND
By:
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
ACCEPTED:
BANK XXXXXX XXXX & CO., LTD., NEW YORK BRANCH
By:
-----------------------------
Name:
Title:
Dated: ______________________, 2002
6
