SUB-ADMINISTRATION AGREEMENT
XXXX XXXXX TOTAL RETURN TRUST, INC.
AGREEMENT made this 1st day of August, 2000 by and between Xxxx Xxxxx
Funds Management, Inc. ("Adviser"), a Maryland corporation, and Xxxx Xxxxx Fund
Adviser, Inc. ("Administrator"), a Maryland corporation, each of which is
registered as an investment adviser under the Investment Advisers Act of 1940.
WHEREAS, the Adviser is the investment adviser and manager of Xxxx
Xxxxx Total Return Trust, Inc. ("Fund"), an open-end, diversified management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Adviser wishes to retain the Administrator to provide the
Fund with certain administrative services; and
WHEREAS, the Administrator is willing to furnish such services on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1. Appointment. The Adviser hereby appoints the Administrator as
administrator for the Fund for the period and on the terms set forth in this
Agreement. The Administrator accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided.
2. Delivery of Documents. The Adviser has furnished the Administrator
with copies properly certified or authenticated of each of the following:
(a) The Fund's Articles of Incorporation, as filed with
the State Department of Assessments and Taxation of
the State of Maryland and all amendments thereto;
(b) The Fund's By-Laws and all amendments thereto;
(c) The Investment Advisory and Management Agreement
between the Fund and the Adviser;
(d) The Fund's currently effective Registration Statement
on Form N-1A under the Securities Act of 1933, as
amended, and the 1940 Act, as filed with the
Securities and Exchange Commission, including all
exhibits thereto, relating to shares of common stock
of the Fund, and all amendments thereto;
(e) The Fund's most recent prospectus(es); and
(f) The Fund's most recent statement(s) of additional
information.
The Adviser will furnish the Administrator from time to time with copies of all
amendments of or supplements to the foregoing.
3. Administrative Services. (a) The Administrator, at its expense,
shall supply the Board of Directors and officers of the Fund with all
statistical information and reports reasonably required by them and reasonably
available to the Administrator and shall furnish the Fund with office
facilities, including space, furniture and equipment and all personnel
reasonably necessary for the administration of the Fund. The Administrator shall
authorize and permit any of its directors, officers and employees, who may be
elected as directors or officers of the Fund, to serve in the capacities in
which they are elected.
(b) The Administrator shall oversee the maintenance of all
books and records with respect to the Fund's securities transactions and the
keeping of the Fund's books of accounts in accordance with all applicable
federal and state laws and regulations. In compliance with the requirements of
Rule 31a-3 under the 1940 Act, the Administrator hereby agrees that any records
which it maintains for the Fund are the property of the Fund, and further agrees
to surrender promptly to the Fund or its agents any of such records upon the
Fund's request. The Administrator further agrees to arrange for the preservation
of the records required to be maintained by Rule 31a-1 under the 1940 Act for
the periods prescribed by Rule 31a-2 under the 1940 Act.
4. Services Not Exclusive. The Administrator's services hereunder are
not deemed to be exclusive, and the Administrator shall be free to render
similar services to others. It is understood that persons employed by the
Administrator to assist in the performance of its duties hereunder might not
devote their full time to such service. Nothing herein contained shall be deemed
to limit or restrict the right of the Administrator or any affiliate of the
Administrator to engage in and devote time and attention to other businesses or
to render services of whatever kind or nature.
5. Expenses. During the term of this Agreement, the Administrator will
pay all expenses incurred by it in connection with its activities under this
Agreement.
6. Compensation. For the services which the Administrator will render
to the Adviser and the Fund under this Agreement, the Adviser will pay the
Administrator a fee, computed daily and paid monthly, at an annual rate equal to
0.05% of the Fund's average daily net assets. Fees due to the Administrator
hereunder shall be paid promptly to the Administrator by the Adviser following
its receipt of fees from the Fund. If this Agreement is terminated as of any
date not the last day of a calendar month, a final fee shall be paid promptly
after the date of termination, which fee shall be based on the percentage of
days of the month during which the contract was still in effect and the average
daily net assets over that time period.
7. Limitation of Liability. The Administrator assumes no responsibility
under this Agreement other than to render the services called for hereunder, in
good faith, and shall not be responsible for any action of the Board of
Directors of the Fund in following or declining to follow any advice or
recommendations of the Administrator; provided, however, that nothing in this
Agreement shall protect the Administrator against any liability to the Adviser,
the Fund or the Fund's shareholders for a loss resulting from willful
misfeasance, bad faith or gross negligence in the performance of its duties or
from reckless disregard of its obligations or duties under this Agreement.
8. Definitions. As used in this Agreement, the term "securities" shall
have the meaning ascribed to it in the Articles of Incorporation of the Fund;
and the terms "assignment" and "interested person" shall have the meanings given
to them by Section 2(a) of the 1940 Act, subject to such exemptions as may be
granted by the Securities and Exchange Commission by any rule, regulation or
order.
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9. Duration and Termination. This Agreement will become effective
August 1, 2000. This Agreement cannot be amended or terminated by the Adviser
except with the prior approval of the Board of Directors of the Fund. This
Agreement will be terminated immediately upon any termination of the Investment
Advisory and Management Agreement between the Fund and the Adviser or upon the
mutual written consent of the Administrator and the Adviser. This Agreement will
automatically and immediately terminate in the event of its assignment.
10. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
11. Amendments. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought.
12. Miscellaneous. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to the subject matter hereof. 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. Should any part of this Agreement 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 on and shall inure to the
benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first above
written.
XXXX XXXXX FUNDS MANAGEMENT, INC.
Attest:
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------ ------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
XXXX XXXXX FUND ADVISER, INC.
Attest:
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------ ------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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