Exhibit (h)(3)
XXXXX XXXXX SERIES TRUST II
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made this 20th day of October, 2003, between Xxxxx Xxxxx Series
Trust II, a Massachusetts business trust (the "Trust") on behalf of Xxxxx Xxxxx
Tax-Managed Emerging Markets Fund (the "Fund") and Xxxxx Xxxxx Management, a
Massachusetts business trust, (the "Administrator").
IN CONSIDERATION of the mutual promises and undertakings herein contained,
the parties hereto agree with respect to the Fund:
1. Duties of the Administrator. The Trust hereby employs the Administrator
to act as administrator of the Fund and to administer its affairs, subject to
the supervision of the Trustees of the Trust, for the period and on the terms
set forth in this Agreement.
The Administrator hereby accepts such employment, and undertakes to afford
to the Trust the advice and assistance of the Administrator's organization in
the administration of the Fund and to furnish, at the Administrator's expense,
for the use of the Fund office space and all necessary office facilities,
equipment and personnel for administering the affairs of the Fund and to pay (i)
the Fund's pro rata share of the salaries and fees of all officers and Trustees
of the Trust who are members of the Administrator's organization and (ii) the
salaries and fees of all personnel of the Administrator performing services
relating to administrative activities.
In connection with providing the Trust advice and assistance in the
administration of the Fund, the Administrator shall provide or procure on behalf
of the Fund, at the Administrator's expense, the following services: (a)
coordinating matters relating to the operation of the Fund, including any
necessary coordination among the adviser or advisers to the Fund, the
custodian(s), transfer agent(s), dividend disbursing agent(s), and recordkeeping
agent(s) (including pricing and valuation of the Fund), accountants, attorneys,
and other parties performing services or operational functions for the Fund or
the Trust on behalf of the Fund; (b) maintaining, or supervising the maintenance
by third parties, of such books and records of the Trust on behalf of the Fund
as may be required by applicable federal or state law other than the records and
ledgers maintained under the Investment Advisory Agreement; (c) preparing or
supervising the preparation by third parties of all federal, state, and local
tax returns and reports of the Trust on behalf of the Fund required by
applicable law; (d) preparing, filing, and arranging for the distribution of
proxy materials and periodic reports to shareholders of the Trust on behalf of
the Fund as required by applicable law; (e) preparing and arranging for the
filing of such registration statements and other documents with the Securities
and Exchange Commission (the "SEC") and other federal and state regulatory
authorities as may be required to register the shares of the Fund; and (f)
taking such other action with respect to the Fund as may be required by
applicable law, including, without limitation the rules and regulations of the
SEC and of state securities commissions and other regulatory agencies.
In addition, the Administrator shall provide or procure on behalf of the
Fund, at the Administrator's expense, the following services: (w) custodian
services to provide for the safekeeping of the Fund's assets; (x) recordkeeping
services to maintain the portfolio accounting records for the Fund; (y) transfer
agency services to maintain the portfolio accounting records for the Fund; and
(z) dividend disbursing services for the Fund. The services to be provided under
(y) and (z) of this Section 1 shall be commensurate with the level of services
reasonably necessary for the institutional investors that are eligible to invest
in Class I shares of the Fund, as set forth in the prospectus for such Class of
the Fund. The Trust may be a party to any agreement with any person or persons
engaged to provide the services referred to in this Section 1(y) and 1(z).
During the term of this Agreement, the Administrator will pay all expenses
incurred by it in connection with its obligations under this Agreement, except
such expenses as are those of the Fund under this Agreement.
In performing the services enumerated in this Section 1, the Administrator
shall:
(i) conform with the Investment Company Act of 1940, as amended (the
"1940 Act"), and all rules and regulations thereunder, all other applicable
federal and state laws and regulations, with any applicable procedures
adopted by the Trust's Board of Trustees, and with the provisions of the
Trust's Registration Statement related to the Fund filed on Form N-1A as
supplemented or amended from time to time.
(ii) make available to the Trust, promptly upon request, any of the
Fund's books and records as are maintained under this Agreement, and will
furnish to regulatory authorities having the requisite authority any such
books and records and any information or reports in connection with the
Administrator's services under this Agreement that may be requested in
order to ascertain whether the operations of the Trust are being conducted
in a manner consistent with applicable laws and regulations.
(iii) regularly report to the Trust's Board of Trustees on the
services provided under this Agreement and will furnish the Trust's Board
of Trustees with respect to the Fund such periodic and special reports as
the Trustees may reasonably request.
The Administrator shall for all purposes herein be deemed to be an
independent contractor and shall, except as otherwise expressly provided or
authorized, have no authority to act for or represent the Trust in any way or
otherwise be deemed an agent of the Trust.
Notwithstanding the foregoing, the Administrator shall not be deemed to
have assumed any duties with respect to, and shall not be responsible for, the
management of the Fund's assets or the rendering of investment advice and
supervision with respect thereto or the distribution of shares of the Fund, nor
shall the Administrator be deemed to have assumed or have any responsibility
with respect to functions specifically assumed by any transfer agent, custodian
or shareholder servicing agent of the Trust or the Fund.
2. Allocation of Charges and Expenses. The Administrator shall pay the
salaries and fees of all of the Trust's Trustees and officers who devote part or
all of their time to the affairs of the Administrator; the Trust shall not pay
any part of the salaries and fees of such Trustees and officers..
In addition, the Administrator shall, at its expense, furnish to the Trust
on behalf of the Fund: (i) services by the Trust's independent public
accountants to perform all audits of the Fund; (ii) services of the Trust's
transfer agent(s), registrar, dividend disbursing agent(s), and shareholder
recordkeeping with respect to the Fund; (iii) services of the Trust's custodian,
including any recordkeeping services provided by the custodian on behalf of the
Fund; (iv) services of obtaining quotations for calculating the value of the
Fund's net assets; (v) services of maintaining the Trust's tax records on behalf
of the Fund; (vi) services, including procurement of legal services, incident to
meetings of the Fund's shareholders, the preparation and mailing of prospectuses
and reports of the Fund to its shareholders, the filing of reports with
regulatory bodies, and the registration of shares of the Fund with federal and
state securities authorities (except as described in clause (d) below); (vii)
certificates representing shares of the Fund; (viii) the Fund's pro rata share
of the Trust's fidelity bond required by Section 17(g) of the 1940 Act, or other
insurance premiums; (ix) the Fund's pro rata portion of the Trust's association
membership dues; and (x) services to offer shares of the Fund.
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The Trust shall bear the following expenses: (a) taxes, if any, levied
against the Fund; (b) brokerage fees and commissions in connection with the
purchase and sale of portfolio securities for the Fund; (c) costs, including the
interest expenses, of borrowing money; (d) extraordinary expenses, including
extraordinary legal expenses and federal and state securities registration fees
and expenses incurred on behalf of the Fund to the extent authorized by the
Trust's Board of Trustees, as may arise, including expenses incurred in
connection with litigation, proceedings, other claims and the legal obligations
of the Trust to indemnify its trustees, officers, employees, shareholders,
distributors, and agents with respect thereto; (e) organizational expenses of
the Trust on behalf of the Fund; (f) offering expenses of the Trust on behalf of
the Fund to the extent authorized by the Trust's Board of Trustees; and (g) any
expenses listed in clauses (e) and (f) above which are capitalized in accordance
with generally accepted accounting principles.
3. Compensation of Administrator. The Administrator shall receive
compensation from the Trust on behalf of the Fund in respect of the services to
be rendered and the facilities to be provided by the Administrator under this
Agreement in an amount equal to 0.50% of average daily net assets per annum
computed and paid monthly.
4. Other Interests. It is understood that Trustees and officers of the
Trust and shareholders of the Fund are or may be or become interested in the
Administrator as trustees, officers, employees, shareholders or otherwise and
that trustees, officers, employees and shareholders of the Administrator are or
may be or become similarly interested in the Fund, and that the Administrator
may be or become interested in the Fund as shareholder or otherwise. It is also
understood that trustees, officers, employees and shareholders of the
Administrator may be or become interested (as directors, trustees, officers,
employees, shareholders or otherwise) in other companies or entities (including,
without limitation, other investment companies) which the Administrator may
organize, sponsor or acquire, or with which it may merge or consolidate, and
which may include the words "Xxxxx Xxxxx" or any combination thereof as part of
their name, and that the Administrator or its subsidiaries or affiliates may
enter into advisory or management or administration agreements or other
contracts or relationships with such other companies or entities.
5. Limitation of Liability of the Administrator. The services of the
Administrator to the Trust and the Fund are not to be deemed to be exclusive,
the Administrator being free to render services to others and engage in other
business activities. The Administrator shall give the Trust the benefit of the
Administrator's best efforts in rendering services under this Agreement. The
Administrator may rely on information reasonably believed by it to be accurate
and reliable. In the absence of willful misfeasance, bad faith, gross negligence
or reckless disregard of obligations or duties hereunder on the part of the
Administrator, the Administrator shall not be subject to liability to the Trust
or the Fund or to any shareholder of the Fund for any act or omission in the
course of, or connected with, rendering services hereunder or for any losses
which may be sustained in the acquisition, holding or disposition of any
security or other investment.
6. Sub-Administrators. The Administrator may employ one or more
sub-administrators from time to time to perform such of the acts and services of
the Administrator and upon such terms and conditions as may be agreed upon
between the Administrator and such sub-administrators and approved by the
Trustees of the Trust, all as permitted by the Investment Company Act of 1940.
7. Duration and Termination of this Agreement. This Agreement shall become
effective upon the date of its execution, and, unless terminated as herein
provided, shall remain in full force and effect through and including March 31,
2005 and shall continue in full force and effect indefinitely thereafter, but
only so long as such continuance after March 31, 2005 is specifically approved
at least annually (i) by the Board of Trustees of the Trust and (ii) by the vote
of a majority of those Trustees of the Trust who are not interested persons of
the Administrator or the Trust.
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Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this Agreement without the payment of any
penalty, by action of Trustees of the Trust or the trustee of the Administrator,
as the case may be, and the Trust may, at any time upon such written notice to
the Administrator, terminate this Agreement by vote of a majority of the
outstanding voting securities of the Fund. This Agreement shall terminate
automatically in the event of its assignment.
8. Amendments of the Agreement. This Agreement may be amended by a writing
signed by both parties hereto, provided that no amendment to this Agreement
shall be effective until approved (i) by the vote of a majority of those
Trustees of the Trust who are not interested persons of the Administrator or the
Trust, and (ii) by vote of the Board of Trustees of the Trust. Additional series
of the Trust, however, will become a Fund hereunder upon approval by the
Trustees of the Trust and amendment of Schedule A.
9. Limitation of Liability. The Fund shall not be responsible for the
obligations of any other series of the Trust. Each party expressly acknowledges
the provision in the other party's Declaration of Trust limiting the personal
liability of trustees, officers and shareholders, and each party hereby agrees
that it shall only have recourse to the assets of the other party for payment of
claims or obligations arising out of this Agreement.
10. Use of the Name "Xxxxx Xxxxx". The Administrator hereby consents to the
use by the Fund of the name "Xxxxx Xxxxx" as part of the Fund's name; provided,
however, that such consent shall be conditioned upon the employment of the
Administrator or one of its affiliates as the administrator of the Fund. The
name "Xxxxx Xxxxx" or any variation thereof may be used from time to time in
other connections and for other purposes by the Administrator and its affiliates
and other investment companies that have obtained consent to the use of the name
"Xxxxx Xxxxx." The Administrator shall have the right to require the Fund to
cease using the name "Xxxxx Xxxxx" as part of the Fund's name if the Fund
ceases, for any reason, to employ the Administrator or one of its affiliates as
the Fund's administrator. Future names adopted by the Fund for itself, insofar
as such names include identifying words requiring the consent of the
Administrator, shall be the property of the Administrator and shall be subject
to the same terms and conditions.
11. Certain Definitions. The term "interested persons" when used herein
shall have the respective meanings specified in the 1940 Act as now in effect or
as hereafter amended subject, however, to such exemptions as may be granted by
the Securities and Exchange Commission by any rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
XXXXX XXXXX SERIES TRUST II XXXXX XXXXX MANAGEMENT
By /s/ Xxxxxxx X. Xxxxxxxxxx By /s/ Xxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxxxxx Xxxx X. Xxxxxx
President Vice President
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