EX-99.h.1
ADMINISTRATION CONTRACT
Contract made as of May 21, 2001, between THE XXXXXXX FUNDS, a
Delaware business trust ("Trust"), and BRINSON ADVISORS, INC. ("Xxxxxxx
Advisors"), a Delaware corporation registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and as a broker-dealer under the
Securities Exchange Act of 1934, as amended ("1934 Act"),
WHEREAS the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company, and
currently has multiple distinct series of shares of beneficial interest, which
correspond to distinct portfolios and have been designated as the funds listed
on Exhibit A, as it may be amended from time to time (each a "Fund" and,
collectively, "Funds"); and
WHEREAS the Trust desires to retain Xxxxxxx Advisors as administrator
to furnish certain administrative services to the Trust with respect to the
Funds, and Xxxxxxx Advisors is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints Xxxxxxx Advisors as
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administrator of the Trust and each Fund for the period and on the terms set
forth in this Contract. Xxxxxxx Advisors accepts such appointment and agrees to
render the services herein set forth, for the compensation herein provided.
2. Duties as Administrator. Xxxxxxx Advisors shall furnish, at its
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own expense, the executive, supervisory and clerical personnel necessary in
order to administer the affairs of the Trust and each Fund subject to the
supervision of the Trust's Board of Trustees ("Board"). In carrying out the
terms of this Contract, Xxxxxxx Advisors shall:
(a) provide office space, equipment and facilities (which may be
Xxxxxxx Advisors' or its affiliates') for maintaining the Trust's
organization, for meetings of the Trust's Board and shareholders, and for
performing administrative services hereunder;
(b) supervise and manage all aspects of the Funds' operations (other
than investment advisory activities), assist in the selection of and
supervise relations with, and monitor the performance of, custodians,
depositories, transfer and pricing agents, accountants, attorneys,
underwriters, brokers and dealers, insurers and other persons in any
capacity deemed to be necessary and desirable by the Board;
(c) provide certain internal clerical and legal services, and
stationery and office supplies;
(d) provide accounting services, including:
1) determining and arranging for the publication of the net asset
value of each Fund;
2) preparing financial information for presentation to the
Trust's Board;
3) preparing and monitoring the Trust's annual expense budget,
and establishing daily accruals;
4) calculating contractual expenses and coordinating payment of
Fund expenses;
5) calculating periodic dividend rates to be declared in
accordance with guidelines and supervising the Trust's transfer agent with
respect to the payment of dividends and other distributions to
shareholders;
6) calculating total return (and, if applicable, yield)
information as described in the current prospectuses and statement of
additional information;
7) coordinating audit packages for use by independent public
accountants;
8) responding to regulatory audits;
(e) provide non-investment related statistical and research data and
such other reports, evaluations and information as the Funds may request
from time to time;
(f) monitor each Fund's compliance with the current registration
statement, the 1940 Act, the Internal Revenue Code and other applicable
laws and regulations;
(g) prepare, to the extent requested by the Trust, and coordinate
with Trust's counsel, prospectuses, statements of additional information,
registration statements, proxy statements and annual and semi-annual
reports to shareholders;
(h) arrange for the printing and mailing (at the Funds' expense) of
an annual list of shareholders, proxy statements and other reports or other
materials provided to the Funds' shareholders;
(i) supervise and facilitate the solicitation of proxies solicited
by the Trust for all shareholder meetings, including the tabulation process
for shareholder meetings;
(j) support outside auditors in preparing and filing all the Funds'
federal and state tax returns and required tax filings;
(k) prepare periodic reports to and filings with the Securities and
Exchange Commission (the "SEC") and state Blue Sky authorities with the
advice of the Funds' counsel;
(l) maintain the Trust's existence, and during such times as the
shares of the Funds are publicly offered, maintain the registration and
qualification of the Funds' shares under federal and state law;
(m) coordinate the Trust's board meeting schedule, initiate the
agenda and coordinate production of board meeting materials;
(n) provide individuals acceptable to the Trustees for nomination,
appointment, or election as officers of the Trust, who will be responsible
for the management of certain of the Trust's affairs as determined by the
Trustees;
(o) keep and maintain the financial accounts and records of the
Funds;
(p) analyze and propose changes to shareholder services designed to
enhance the value or convenience of the Funds as an investment vehicle;
(q) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust in
accordance with the requirements of Rules 17g-1 and 17d-1(7) under the 1940
Act as such bonds and policies are approved by the Trust's Board of
Trustees;
(r) provide the Board on a regular basis with reports and analyses
of each Fund's operations and the operations of comparable investment
companies; and
(s) take any other actions which appear to Xxxxxxx Advisors and the
Board necessary to carry into effect the purposes of this Contract.
3. Further Duties. In all matters relating to the performance of
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this Contract, Xxxxxxx Advisors will act in conformity with the Agreement and
Declaration of Trust, By-Laws, and registration statement of the Trust and with
the instructions and directions of the Board and will comply with the
requirements of the 1940 Act, the rules thereunder, and all other applicable
federal and state laws and regulations.
4. Delegation of Xxxxxxx Advisors' Duties as Administrator. With
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respect to any or all Funds, Xxxxxxx Advisors may enter into one or more
contracts ("Sub-Administration Contract") with one or more sub-administrators in
which Xxxxxxx Advisors delegates to such sub-administrators any or all of its
duties specified in Paragraph 2 of this Contract, provided that each Sub-
Administration Contract imposes on the sub-administrator bound thereby all the
corresponding duties and conditions to which Xxxxxxx Advisors is subject by
Paragraph 2 of this Contract and all the duties and conditions of Paragraph 3 of
this Contract.
5. Services Not Exclusive. The services furnished by Xxxxxxx
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Advisors hereunder are not to be deemed exclusive and Xxxxxxx Advisors shall be
free to furnish similar services to others so long as its services under this
Contract are not impaired thereby or unless otherwise agreed to by the parties
hereunder in writing. Nothing in this Contract shall limit or restrict the right
of any director, officer or employee of Xxxxxxx Advisors, who may also be a
Trustee, officer or employee of the Trust, to engage in any other business or to
devote his or her time and attention in part to the management or other aspects
of any other business, whether of a similar nature or a dissimilar nature.
6. Expenses.
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(a) During the term of this Contract, each Fund will bear all
expenses, not specifically assumed by Xxxxxxx Advisors, incurred in its
operations and the offering of its shares.
(b) Expenses borne by each Fund will include but not be limited to
the following (or each Fund's proportionate share of the following): (i)
fees payable to and expenses incurred on behalf of the Fund by Xxxxxxx
Advisors under this Contract; (ii) expenses of organizing the Trust and the
Fund; (iii) filing fees and expenses relating to the registration and
qualifications of the Fund's shares and the Trust under federal and/or
state securities laws and maintaining such registration and qualifications;
(iv) fees and salaries payable to the Trust's Trustees and officers who are
not interested persons of the Trust or Xxxxxxx Advisors; (v) all expenses
incurred in connection with the Trustees' services, including travel
expenses; (vi) taxes (including any income or franchise taxes) and
governmental fees; (vii) costs of any liability, uncollectible items of
deposit and other insurance and fidelity bonds; (vii) any costs, expenses
or losses arising out of
a liability of or claim for damages or other relief asserted against the
Trust or Fund for violation of any law; (ix) legal, accounting and auditing
expenses, including legal fees of special counsel for those Trustees of the
Trust who are not interested persons of the Trust; (x) charges of
custodians, transfer agents and other agents; (xi) costs of preparing share
certificates; (xii) expenses of setting in type and printing prospectuses
and supplements thereto, statements of additional information and
supplements thereto, reports and proxy materials for existing shareholders;
(xiii) costs of mailing prospectuses and supplements thereto, statements of
additional information and supplements thereto, reports and proxy materials
to existing shareholders; (xiv) any extraordinary expenses (including fees
and disbursements of counsel, costs of actions, suits or proceedings to
which the Trust is a party and the expenses the Trust may incur as a result
of its legal obligation to provide indemnification to its officers,
Trustees, agents and shareholders) incurred by the Trust or Fund; (xv)
fees, voluntary assessments and other expenses incurred in connection with
membership in investment company organizations; (xvi) cost of mailing and
tabulating proxies and costs of meetings of shareholders, the Board and any
committees thereof; (xvii) the cost of investment company literature and
other publications provided by the Trust to its Trustees and officers;
(xviii) costs of mailing, stationery and communications equipment; (xix)
expenses incident to any dividend, withdrawal or redemption options; (xx)
charges and expenses of any outside pricing service used to value portfolio
securities; (xxi) interest on borrowings of the Trust; and (xxii) fees or
expenses related to license agreements with respect to securities indices.
(c) The Trust or a Fund may pay directly any expenses incurred by it
in its normal operations and, if any such payment is consented to by
Xxxxxxx Advisors and acknowledged as otherwise payable by Xxxxxxx Advisors
pursuant to this Contract, the Fund may reduce the fee payable to Xxxxxxx
Advisors pursuant to Paragraph 7 thereof by such amount. To the extent that
such deductions exceed the fee payable to Xxxxxxx Advisors on any monthly
payment date, such excess shall be carried forward and deducted in the same
manner from the fee payable on succeeding monthly payment dates.
(d) Xxxxxxx Advisors will assume the cost of any compensation for
services provided to the Trust received by the officers of the Trust and by
those Trustees who are interested persons of the Trust.
(e) The payment or assumption by Xxxxxxx Advisors of any expenses of
the Trust or a Fund that Xxxxxxx Advisors is not required by this Contract
to pay or assume shall not obligate Xxxxxxx Advisors to pay or assume the
same or any similar expense of the Trust or a Fund on any subsequent
occasion.
7. Compensation.
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(a) For the services provided and the expenses assumed pursuant to
this Contract, each Fund will pay to Xxxxxxx Advisors a fee, computed daily
and paid monthly, at an annual rate of 0.075% of average daily net assets
of such Fund. No Fund shall be responsible for payment owed by any other
Fund.
(b) The fee shall be computed daily and paid monthly to Xxxxxxx
Advisors on or before the first business day of the next succeeding
calendar month.
(c) If this Contract becomes effective or terminates before the end
of any month, the fee for the period from the effective day to the end of
the month or from the beginning of such month
to the date of termination, as the case may be, shall be prorated according
to the proportion which such period bears to the full month in which such
effectiveness or termination occurs.
8. Limitation of Liability of Xxxxxxx Advisors. Xxxxxxx Advisors
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shall not be liable for any error of judgment or mistake of law or for any loss
suffered by any Fund, the Trust or any of its shareholders, in connection with
the matters to which this Contract relates, except to the extent that such a
loss results from negligence, willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties or from reckless disregard by it of
its obligations and duties under this Contract. Any person, even though also an
officer, director, employee, or agent of Xxxxxxx Advisors, who may be or become
an officer, Trustee, employee or agent of the Trust shall be deemed, when
rendering services to any Fund or the Trust or acting with respect to any
business of such Fund or the Trust, to be rendering such service to or acting
solely for the Fund or the Trust and not as an officer, director, employee, or
agent or one under the control or direction of Xxxxxxx Advisors even though paid
by it.
9. Limitation of Liability of the Trustees and Shareholders of the
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Trust. No Trustee, shareholder, officer, employee or agent of any Fund shall be
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liable for any obligations of any Fund or the Trust under this Contract, and
Xxxxxxx Advisors agrees that, in asserting any rights or claims under this
Contract, it shall look only to the assets and property of the Trust in
settlement of such right or claim, and not to any Trustee, shareholder, officer,
employee or agent. Moreover, this Contract shall be deemed to create a separate
agreement with the Trust acting on behalf of its respective series listed on
Exhibit A hereto, as though the Trust had separately executed an identical
agreement for all of its respective series. For each reference in this Agreement
to Trust shall be deemed a reference solely to the particular series to which
the provision relates. In no circumstances shall the rights, obligations or
remedies with respect to a particular series constitute a right, obligation or
remedy applicable to any other series.
10. Confidentiality. Xxxxxxx Advisors shall have the right to use
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any list of shareholders of the Fund or any other list of investors which it
obtains in connection with its provision of services under this Contract;
provided, however, that Xxxxxxx Advisors shall not sell or knowingly provide
such list or lists to any unaffiliated person. Xxxxxxx Advisors agrees on behalf
of itself and its employees to treat confidentially all records and other
information relative to the Trust and the Funds and its prior, present or
potential shareholders. In accordance with Section 248.11 of Regulation S-P (17
CFR 248.1-248.30) ("Reg S-P"), Xxxxxxx Advisors will not directly, or indirectly
through an affiliate, disclose any non-public personal information, as defined
in Reg S-P, received from the Fund to any person that is not affiliated with the
Fund or with Xxxxxxx Advisors and provided that any such information disclosed
to an affiliate of Xxxxxxx Advisors shall be under the same limitations of non-
disclosure.
11. Equipment Failures. In the event of equipment failures beyond
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Xxxxxxx Advisors' control, Xxxxxxx Advisors shall, at no additional expense to
the Trust, take reasonable steps to minimize service interruptions but shall
have no liability with respect thereto. Xxxxxxx Advisors 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.
12. Certain Records. Xxxxxxx Advisors shall maintain customary
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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 Xxxxxxx Advisors on
behalf of the Trust shall be prepared and maintained at the expense of Xxxxxxx
Advisors, but shall be the property of the Trust and will be made available to
or surrendered promptly to the Trust on request.
In case of any request or demand for the inspection of such records by
another party, Xxxxxxx Advisors shall notify the Trust and follow the Trust's
instructions as to permitting or refusing such inspection; provided that Xxxxxxx
Advisors 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 Trust has agreed to
indemnify Xxxxxxx Advisors against such liability.
13. Termination. This Contract shall become effective upon the date
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hereinabove written and may be terminated at any time, with respect to any Fund
without the payment of any penalty, by vote of the Board or by vote of a
majority of a Fund's outstanding voting securities or on sixty days' written
notice to Xxxxxxx Advisors or by Xxxxxxx Advisors at any time, without the
payment of any penalty, on sixty days' written notice to the Trust. Termination
of this Contract with respect to any given Fund shall in no way affect the
continued validity of this Contract or the performance thereunder with respect
to any other Fund.
14. Amendment of this Contract. No provision of this Contract may
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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.
15. Governing Law. This Contract shall be construed in accordance
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with the laws of the State of New York, without giving effect to the conflicts
of laws principles thereof, and in accordance with the 1940 Act, provided,
however, that Section 9 above will be construed in accordance with the laws of
the State of Delaware. To the extent that the applicable laws of the State of
New York or the State of Delaware conflict with the applicable provisions of the
1940 Act, the latter shall control.
16. Miscellaneous. The captions in this Contract are included for
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convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms "interested person," "investment adviser," "majority of outstanding
voting securities" and "prospectus," shall have the same meaning as such terms
have in the 1940 Act, subject to such exemption as may be granted by the
Securities and Exchange Commission by any rule, regulation or order. Where the
effect of a requirement of the 1940 Act reflected in any provision of this
contract is relaxed by a rule, regulation or order of the Securities and
Exchange Commission, whether of special or general application, such provision
shall be deemed to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated as of the day and year first above
written.
XXXXXXX ADVISORS, INC.
Attest: ____________________ By: ______________________
Name: Name:
Title: Title:
THE XXXXXXX FUNDS
Attest: ____________________ By: ______________________
Name: Name:
Title: Title:
Exhibit A
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1. Global Balanced Fund
2. Global Equity Fund
3. Global Technology Fund
4. Global Biotech Fund
5. Global Bond Fund
6. U.S. Balanced Fund
7. U.S. Equity Fund
8. U.S. Value Equity Fund
9. U.S. Large Cap Equity Fund
10. U.S. Large Cap Growth Fund
11. U.S. Small Cap Equity Fund
12. U.S. Small Cap Growth Fund
13. U.S. Real Estate Equity Fund
14. U.S. Bond Fund
15. High Yield Fund
16. Emerging Markets Debt Fund
17. International Equity Fund
18. Emerging Markets Equity Fund
AMENDMENT RELATING TO ADMINISTRATIVE SERVICES
UNDER MULTIPLE SERVICES AGREEMENT
This AMENDMENT, dated May 21, 2001, is between The Xxxxxxx Funds, a
Delaware business trust (the "Customer"), on behalf of its separate Series, and
The Chase Manhattan Bank (the "Bank"). It amends the Multiple Services
Agreement, effective May 9, 1997, as amended from time to time (the
"Agreement"), between the Customer and Xxxxxx Xxxxxxx Trust Company, a
predecessor company to the Bank.
WHEREAS, the terms of the Agreement provide that the Bank shall
provide certain administrative services to the Customer and its Series; and
WHEREAS, the Board of Trustees of the Customer has appointed Xxxxxxx
Advisors, Inc. to serve as the administrator of the Customer; and
WHEREAS, as a result of such appointment, it is necessary to modify
the Agreement to reflect the scope of administrative services to be provided by
the Bank to the Customer, as provided in this Amendment; and
WHEREAS, the Customer and the Bank desire to continue the Agreement,
subject to the modifications set forth in this Amendment;
NOW, THEREFORE, effective May 21, 2001, the Agreement is amended as
follows:
1. The initial paragraph of Section II of the Agreement is
deleted, and replaced by the following:
The Customer hereby appoints the Bank as its accounting services and
transfer agent to the Series, and the Bank hereby accepts such
appointment. In addition, to the extent delegated to the Bank by
Xxxxxxx Advisors, Inc. ("Advisors"), the administrator of the
Customer, the Bank shall be responsible for the provision of certain
administrative services to the Customer and its Series. This Section
II. of this Agreement relates solely to the provision of accounting
and transfer agency services to the Customer and its Series, and, to
the extent delegated to the Bank by Advisors, the provision of
administrative services to the Customer and its Series. For purposes
of this Section II., the term "Bank" shall include the Bank and its
agents.
2. "Schedule F-Fee Schedule for The Xxxxxxx Funds, As Amended May
9, 2000" is hereby replaced in its entirety with "Schedule F-Fee Schedule for
The Xxxxxxx Funds, Effective May 21, 2001" attached hereto.
3. Unless expressly defined herein, the terms used in this
Amendment shall have the meaning assigned to them in the Agreement.
4. Except as expressly modified hereby, the Agreement is confirmed
in all respects.
IN WITNESS WHEREOF, the parties have duly executed this Amendment.
THE CHASE MANHATTAN BANK
By: _______________________
Title: ____________________
THE XXXXXXX FUNDS
By: _______________________
Title: ____________________
SCHEDULE F
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FEE SCHEDULE FOR THE XXXXXXX FUNDS
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Effective May 21, 2001
Accounting, Transfer Agency and
Custody Services Annual Fee Schedule
1. On an annual basis, 0.25 basis points of the average weekly U.S. assets of
the Customer and 6.00 basis points of the average weekly non-U.S. assets of
the Customer, 32.50 basis points of the average weekly emerging market
equity assets of the Customer and 1.90 basis points of the average weekly
emerging markets debt assets of the Customer.
There will be an annual fee of $25 for each shareholder account within The
Xxxxxxx Funds.
NO FEE (asset based or otherwise) will be charged on any investments made
by any fund into any other fund managed by Xxxxxxx Partners, Inc. Fees are
to be charged ONLY where actual non-Xxxxxxx Partners, Inc.-sponsored
investment company or series securities are held.
For purposes of this Schedule F, the "average weekly U.S. assets of the
customer" means the average weekly U.S. assets custodied within the United
States of the Customer as calculated by the Accounting Agent for the month
for which the statement reflecting the charges for a given month relates.
For purposes of this Schedule F, the "average weekly non-U.S. assets of the
customer" means the average weekly balance of countries included in the
Xxxxxx Xxxxxxx Capital World Ex-U.S.A. (free) Index or the Salomon Non-U.S.
Government Bond Index (including assets with a country of issue of the
European Economic Community and held in Euroclear or CEDEL) custodied
outside the United States of the Customer as calculated by the Accounting
Agent for the month for which the statement reflecting the charges for a
given month relates. For purposes of this Schedule F, the "average weekly
emerging markets equity assets of the customer" means the average weekly
balance of the countries included in the International Finance Corporation
Global Index (excluding countries included in the Xxxxxx Xxxxxxx Capital
World Ex-U.S.A. (free) Index or the Salomon Non-U.S. Government Bond Index,
but including assets with a country of issue in the local market contained
in such index that are held in Euroclear or CEDEL) custodied outside the
United States of the Customer's emerging markets equity funds as calculated
by the Accounting Agent for the month for which the statement reflecting
the charges for a given month relates. For purposes of this Schedule F, the
"average weekly emerging markets debt assets of the customer" means the
average weekly balance of the countries included in the X.X. Xxxxxx
Emerging Markets Bond Index Plus custodied outside the United States of the
Customer's emerging markets debt funds (including assets with a country of
issue in the local market contained in such index that are held in
Euroclear or CEDEL) as calculated by the Accounting Agent for the month for
which the statement reflecting the charges for a given month relates.
Those fees include all out-of-pocket expenses or transaction charges
incurred by the accountant, administrator, transfer agent and custodian
with the exception of the following:
The Customer will be billed directly by Other Parties for the following
direct Customer expenses or transaction charges:
(1) taxes;
(2) salaries and other fees of officers and directors who are not
officers, directors, shareholders or employees of Other Parties, or
the Customer's investment adviser;
(3) SEC and state Blue Sky registration and qualification fees, levies,
fines and other charges;
(4) XXXXX filing fees;
(5) independent public accountants;
(6) insurance premiums including fidelity bond premiums;
(7) outside legal expenses;
(8) costs of maintenance of corporate existence;
(9) expenses of typesetting and printing of prospectuses for regulatory
purposes and for distribution to current shareholders of the
Customer;
(10) expenses of printing and production costs of shareholders' reports
and proxy statements and materials;
(11) trade association dues and expenses; and
(12) travel and lodging expenses of the Customer's directors and officers
who are not directors, officers and/or employees of Other Parties.
Customer will not be billed directly for any direct Customer Expenses or
pay any other direct Customer expenses, unless the payment of such direct
expenses is agreed to in writing by Customer.
2. Upon termination of the provision of services under this Agreement before
the end of any month, the fee for the part of the month before such
termination or the date after which the provision of services ceases,
whichever is later, shall be prorated according to the proportion which
such part bears to the full monthly period and shall be payable upon the
date of such termination or the date after which the provision of the
services ceases, whichever is later.
