EXHIBIT 9(b)
FUND ACCOUNTING AND ADMINISTRATION AGREEMENT
Amended and Restated June __, 1998
THIS AGREEMENT made as of June __, 1998 by and between Security
Capital Real Estate Mutual Funds Incorporated, a Maryland corporation (the
"Fund"), and Security Capital Global Capital Management Group Incorporated, a
Delaware corporation (the "Administrator").
W I T N E S S E T H:
WHEREAS, the Fund is an open-end, management investment company that
issues four series of shares ("Series"), Security Capital U.S. Real Estate
Shares, Security Capital European Real Estate Shares, Security Capital
Asia/Pacific Real Estate Shares and Security Capital Real Estate Arbitrage
Shares, each with two classes, which may be purchased by retail investors and
institutional investors and which may offer different services to shareholders
and incur different expenses; and
WHEREAS, the Fund wishes to retain the Administrator to provide
certain fund accounting and administration services with respect to the Series
and the Administrator 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 Fund hereby appoints the Administrator to
-----------
provide fund accounting and administration services to the Series, subject to
the supervision of the Board of Directors of the Fund (the "Board of
Directors"), 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 in return for the compensation as provided in Paragraph 4 of this
Agreement. In the event that the Fund establishes one or more additional Series
with respect to which it decides to retain the Administrator to act as
administrator hereunder, the Fund shall notify the Administrator in writing. If
the Administrator is willing to render such services to a new Series, the
Administrator shall so notify the Fund in writing whereupon such Series shall be
subject to
the provisions of this Agreement to the same extent as all other Series, except
to the extent that said provisions (including those relating to the compensation
payable by the Fund) may be modified with respect to such Series in writing by
the Fund and the Administrator at the time of the addition of such new Series.
2. Delivery of Documents. The Fund has furnished the Administrator
---------------------
with copies, properly certified or authenticated, of each of the following:
(a) Resolutions of the Fund's Board of Directors authorizing the
appointment of the Administrator to provide certain fund accounting and
administration services to the Fund and approving this Agreement;
(b) The Fund's Articles of Incorporation ("Charter");
(c) The Fund's By-Laws ("By-Laws");
(d) The most recent draft of the Fund's Registration Statement on
Form N-1A and when completed, the Fund will provide its most recent Prospectus
and Statement of Additional Information and all amendments and supplements
thereto (such Prospectus and Statement of Additional Information and supplements
thereto, as presently in effect and as from time to time hereafter amended and
supplemented, herein called the "Prospectus").
The Fund will timely furnish the Administrator from time to time with
copies, properly certified or authenticated, of all amendments of or supplements
to the foregoing, if any.
3. Services and Duties. Subject to the supervision and control of
-------------------
the Fund's Board of Directors, the Administrator agrees to assist in supervising
aspects of the Fund's administrative operations, including but not limited to
the performance of the following specific services for the Fund:
(a) Provide office facilities (which may be in the offices of the
Administrator or a corporate affiliate of them, but shall be in such location as
the Fund shall reasonably approve) and the services of a principal financial
officer to be appointed by the Fund;
(b) Furnish statistical and research data, clerical services, and
stationery and office supplies;
(c) Keep and maintain all financial accounts and records (other
than those required to be maintained by the Fund's Custodian and Transfer Agent)
including without
-2-
limit those required under Section 31 (a) and Rule 31a-1 under the Investment
Company Act of 1940 (the "1940 Act");
(d) Compute, and transmit to the NASD service for the publication
of fund prices, the Fund's net asset value, net income and net capital gain
(loss) in accordance with the Fund's Prospectus and resolutions of its Board of
Directors;
(e) Compile data for, and prepare required reports and notices to
shareholders of record including, without limitation, proxy statements,
Semiannual and Annual Reports to shareholders;
(f) Compile data for, prepare for execution and file all reports
or other documents, including tax returns, required by Federal, state and other
applicable laws and regulations, including those required by applicable Federal
and state tax laws (other than those required to be filed by the Fund's
Custodian or Transfer Agent);
(g) Assist in developing and monitoring compliance procedures for
the Fund and any class or series thereof, including, without limitation,
procedures to monitor compliance with applicable law and regulations, the Fund's
investment objectives, policies and restrictions, its continued qualification as
a regulated investment company under Subchapter M of the Internal Revenue Code
of 1986, as amended (the "Code");
(h) Determine, together with the Fund's Board of Directors, the
jurisdictions in which the Fund's shares shall be registered or qualified for
sale and, in connection therewith, the Administrator shall be responsible for
the registration for sale and maintenance of the registrations of shares for
sale under the securities laws of any state. Payment of share registration fees
for qualifying or continuing the qualification of Fund shares or the Fund as a
dealer or broker, if applicable, shall be made by the Fund;
(i) Provide financial data requested by the Fund and its outside
counsel;
(j) Perform such other duties related to the administration of
the Fund's operations as reasonably requested by the Board of Directors, from
time to time;
(k) Assist in the monitoring of regulatory and legislative
developments which may affect the Fund and, in response to such developments,
counsel and assist the Fund in
-3-
routine regulatory examinations or investigations of the Fund, and work with
outside counsel to the Fund in connection with regulatory matters or litigation.
In performing its duties as administrator of the Fund, the
Administrator (a) will act in accordance with the Fund's Charter, By-Laws,
Prospectus, Statement of Additional Information and the instructions and
directions of the Fund's Board of Directors and will conform to, and comply
with, the requirements of the 1940 Act and all other applicable Federal or state
laws and regulations, and (b) will consult with outside legal counsel to the
Fund, as necessary or appropriate.
The Administrator will preserve for the periods prescribed by Rule
31a-2 under the 1940 Act the records required to be maintained by Rule 31a-1
under said Act in connection with the services required to be performed
hereunder. The Administrator further agrees that all such records which it
maintains for the Fund are the property of the Fund and further agrees to
surrender promptly to the Fund any of such records upon the Fund's request.
4. Fees; Expenses; Expense Reimbursement. For the services rendered
-------------------------------------
pursuant to this Agreement for the Fund, the Administrator shall be entitled to
a fee based on the average net assets of each class of shares issued by the Fund
determined at the annual rate set forth in Exhibit A hereto and applied to the
average daily net assets of each class of the Fund's shares. Such fees are to
be computed daily and paid monthly on the first business day of the following
month. Upon any termination of this Agreement before the end of any month, the
fee for such part of the month shall be prorated according to the proportion
which such period bears to the full monthly period and shall be payable upon the
date of termination of this Agreement.
For the purpose of determining fees payable to the Administrator, the value
of the Fund's net assets shall be computed as required by its Prospectus,
generally accepted accounting principles and resolutions of the Fund's Board of
Directors.
The Administrator will from time to time employ or associate with
themselves such sub-administrator or such person or persons as they may believe
to be fitted to assist them in the performance of this Agreement. Such person
or persons may be officers and employees who are employed by both the
Administrator and the Fund. The compensation of such person or persons for such
employment shall be paid by the Administrator, if such person is retained solely
by the Administrator, and no obligation may be incurred on behalf of the Fund in
such respect.
-4-
The Administrator and the Fund may together retain a sub-administrator to
assist the Administrator in the execution of its duties hereunder. The
retention of a sub-administrator by the Administrator and the Fund shall in no
way affect the responsibilities of the Administrator hereunder. The
compensation of a sub-administrator retained by the Administrator and the Fund
may be paid by the Administrator and/or the Fund.
The Administrator will bear all expenses in connection with the performance
of its services under this Agreement except as otherwise expressly provided
herein. Other expenses to be incurred in the operation of the Fund, including
taxes, interest, brokerage fees and commissions, if any, salaries and fees of
officers and directors who are not officers, directors shareholders or employees
of the Administrator, or the Fund's investment advisor or distributor for the
Fund, Securities and Exchange Commission fees and state Blue Sky qualification
fees, advisory and administration fees, charges of custodians, transfer and
divided disbursing agents' fees, certain insurance premiums including fidelity
bond premiums, outside auditing and legal expenses, costs of maintenance of
corporate existence, typesetting and printing of prospectuses for regulatory
purposes and for distribution to current shareholders of the Fund, costs of
shareholders' reports and corporate meetings and any extraordinary expenses,
will be borne by the Fund, provided, however, that, except as provided in any
distribution plan adopted by the Fund, the Fund will not bear, directly or
indirectly, the cost of any activity which is primarily intended to result in
the distribution of shares of the Fund, and further provided that the
Administrator may utilize one or more independent pricing services, approved
from time to time by the Board of Directors of the Fund, to obtain securities
prices in connection with determining the net asset value of each class of the
Fund's shares and the Fund will reimburse the Administrator for its share of the
cost of such services based upon its actual use of the services.
If in any fiscal year the Fund's aggregate expenses (as defined under the
securities regulations of any state having jurisdiction over the Fund) exceed
the expense limitations of any such state, the Administrator agrees to reimburse
the Fund for a portion of any such excess expense in an amount equal to the
proportion that the fee otherwise payable to the Administrator bear to the total
amount of investment advisory and administration fees otherwise payable by the
Fund. The expense reimbursement obligation of the Administrator is limited to
the amount of its fees hereunder for such fiscal year, provided, however, that
notwithstanding the foregoing, the
-5-
Administrator shall reimburse the Fund for a portion of any such excess expenses
in an amount equal to the proportion that the fees otherwise payable to the
Administrator bear to the total amount of investment advisory and administration
fees otherwise payable by the Fund regardless of the amount of fees paid to the
Administrator during such fiscal year to the extent that the securities
regulations of any state having jurisdiction over the Fund so require. Such
expense reimbursement, if any, will be estimated on a daily basis, reconciled
and paid on a monthly basis.
5. Proprietary and Confidential Information. The Administrator agrees on
----------------------------------------
behalf of itself and its employees to treat confidentially and as proprietary
information of the Fund all records and other information relative to the Fund's
prior, present or potential shareholders, and not to use such records and
information for any purpose other than performance of their responsibilities and
duties hereunder, except after prior notification to and approval in writing by
the Fund, 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 Fund.
6. Limitation of Liability. The Administrator shall not be liable for any
-----------------------
error of judgement or mistake of law or for any loss or expense suffered by the
Fund, in connection with the matters to which this Agreement relates, except for
a loss or expense resulting from 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 Agreement. Any person,
even though also an officer, director, partner, employee or agent of the
Administrator, who may be or become an officer, director, employee or agent of
the Fund, shall be deemed when rendering services to the Fund or acting on any
business of the Fund (other than services or business in connection with the
Administrator's duties hereunder) to be rendering such services to or acting
solely for the Fund and not as an officer, director, partner, employee or agent
or one under the control or direction of the Administrator even though paid by
them.
7. Terms. This Agreement shall become effective on the date first
-----
hereinabove written and, unless sooner terminated as provided herein, shall
continue in effect from year to year thereafter, provided such continuance is
specifically approved at least annually (i) by the Fund's Board of Directors or
(ii) by a vote of a majority (as defined in the 0000 Xxx) of the
-6-
outstanding voting securities of the Fund, provided that in either event the
continuance is also approved by the majority of the Fund's Board of Directors
who are not interested persons (as defined in the 0000 Xxx) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. This Agreement is terminable, without penalty, by the Fund's
Board of Directors, by vote of a majority (as defined in the 0000 Xxx) of the
outstanding voting securities of such Fund, or by the Administrator, on not less
than sixty days' notice. This agreement shall automatically terminate upon its
assignment by the Administrator without the prior written consent of the Fund,
provided, however, that no such assignment shall release the Administrator from
its obligations under this Agreement.
8. Governing Law. This Agreement shall be governed by Illinois law.
-------------
9. Amendments. No provision of this Agreement may be changed,
----------
discharged, or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, discharge or termination is
sought.
10. Miscellaneous. The parties to this Agreement acknowledge and agree
-------------
that all liabilities arising, directly or indirectly, under this Agreement, of
any and every nature whatsoever, including without limitation, liabilities
arising in connection with any agreement of the Fund set forth herein to
indemnify any party to this Agreement or any other person, shall be satisfied
out of the assets of the Fund and that no director, officer or shareholder of
the Fund shall be personally liable for any of the foregoing liabilities.
If a change or discharge is sought against the Fund, the instrument must be
signed by the Administrator.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date indicated below.
-7-
SECURITY CAPITAL REAL ESTATE
MUTUAL FUNDS INCORPORATED
ATTEST: By:
---------------------------- ----------------------------
(Title)
SECURITY CAPITAL GLOBAL CAPITAL
MANAGEMENT GROUP INCORPORATED
ATTEST: By:
---------------------------- ----------------------------
(Title)
EFFECTIVE AS OF:
-8-
EXHIBIT A
FUND ACCOUNTING AND FUND ADMINISTRATION
FEE SCHEDULE
FOR
SECURITY CAPITAL U.S. REAL ESTATE SHARES INCORPORATED
Annual Rate: .02% (2 basis points) of the average daily net assets of the
Fund billed monthly.
-9-
