EXHIBIT (2)(h)
ADMINISTRATIVE SERVICES AGREEMENT
THIS AGREEMENT made as of May 10, 1999, by and between the
XXXXXXXX-XXXXXXXXX INSTITUTIONAL FUNDS, a Delaware business trust (the "Trust"),
and XXXXXXXX-XXXXXXXXX CAPITAL MANAGEMENT, a California limited partnership (the
"Company").
WHEREAS, the Trust is engaged in business as an open-end management
investment company of the series type and registered as such under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires to retain the Company to provide certain
administrative services to the Trust and each of its several series, set forth
in Schedule A or hereafter organized (the "Portfolios"), in the manner and on
the terms and conditions hereafter set forth;
NOW THEREFORE, in consideration of the premises and mutual covenants
and agreements hereinafter set forth, the parties intending to be legally bound,
do hereby agree as follows:
1. DUTIES AND RESPONSIBILITIES OF THE COMPANY.
The Company shall oversee the administration of the Trust's and each
Portfolio's business and affairs as set forth herein and shall provide all
administrative services required for effective administration of the Trust and
the Portfolios which are not provided by the Trust's adviser, distributor,
administrator, custodian, transfer agents, accounting agents, independent
accountants and legal counsel. In connection therewith, the Company shall:
1.1 AGENTS. Assist the Trust in selecting, coordinating the
activities of, and negotiating with any person or agent engaged by the Trust,
including the Trust's consultants, transfer agent, sub-transfer agents,
custodians, sub-custodians, dividend disbursing agent, co-administrator,
independent accountants, and independent legal counsel;
1.2 TRUSTEES AND OFFICERS. Authorize and permit the Company's
officers and employees that may be elected or appointed as trustees or officers
of the Trust to serve in such capacities, without remuneration from or
additional cost to the Trust.
1.3 SHAREHOLDER INQUIRIES. Respond to all inquires from Trust
shareholders and/or their representatives, or otherwise answer communications
from Trust shareholders and/or the representatives if such inquiries or
communications are directed to the Company. If any such inquiry or communication
would be more properly answered by one of the agents listed in Section 1.1
above, the Company will coordinate, as needed, the provision of their response.
1.4 PERFORMANCE CALCULATION. Calculate performance data of the
Portfolios
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for dissemination to information services covering the investment company
industry, shareholders, and appropriate regulatory agencies.
1.5 REPORTS TO THE TRUST. Furnish to or place at the
disposal of the Trust such information, reports, evaluations, analyses, and
opinions relating to its administrative functions as may be requested by the
Board of Trustees of the Trust or as the Company deems desirable. The Company
also will assist in the preparation of agendas and other materials for
meetings of the Trust's Board of Trustees and will attend such meetings.
1.6 REPORTS AND FILINGS. Provide appropriate assistance in the
development and/or preparation of all routine reports, prospectuses, proxy
statements, and communications by the Trust to Trust shareholders, and
coordinate the layout and printing of publicly disseminated prospectuses and
reports.
1.7 OFFICE AND OTHER FACILITIES. Furnish, without cost to the
Trust, or provide and pay the cost of, such office facilities, furnishings, and
office equipment as are necessary for the performance of the Company's duties to
the Trust under this Agreement.
2. OWNERSHIP AND CONFIDENTIALITY OF RECORDS.
All records required to be maintained and preserved by the Trust,
pursuant to rules or regulations of the Securities and Exchange Commission under
Section 31(a) of the 1940 Act, that are maintained and preserved by the Company
on behalf of the Trust, are the property of the Trust and shall be surrendered
by the Company promptly on request by the Trust. The Company shall not disclose
or use any record or information obtained pursuant to this Agreement in any
manner whatsoever except as expressly authorized by this Agreement and
applicable law. The Company shall keep confidential any information obtained in
connection with its duties hereunder and shall disclose such information only if
the Trust has authorized such disclosure or if such disclosure is expressly
required by applicable law or federal or state regulatory authorities.
3. STANDARD OF CARE; INDEMNIFICATION.
3.1 The Company shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Trust in connection with
the matters to which this Agreement relates, except a loss 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. The Company shall be entitled to rely on and
may act upon advice of counsel (who may be counsel for the Trusts) on all
matters, and shall be without liability for any action reasonably taken or
omitted pursuant to such advice. Any person, even though also an officer,
partner, employee or agent of the Company, who may be or become an officer,
trustee, employee or agent of the Trust or who may act on any business of the
Trust (other than services or business in connection with the duties of the
Company hereunder or the duties of any affiliate of the Company pursuant to
any other agreement with the Company) shall be considered to be rendering
such services to or acting solely for the Trust and not as an officer,
partner, employee or agent or one under the control or direction of the
Company even though paid by the Company.
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3.2 The Trust shall indemnify the Company, its officers,
employees and partners, and hold them harmless from and against any and all
actions, suits and claims, and from and against all losses, damages (excluding
consequential, punitive or other indirect damages), costs, charges, reasonable
counsel fees and disbursements, payments, expenses, and liabilities (including
reasonable investigation expenses) arising out of any action taken or thing done
by them in performing the services in accordance with the above standards.
3.3 In order that the indemnification provisions contained in
this Article 3. shall apply, however, it is understood that if in any case
the Trust may be asked to indemnify or save the Company, its officers,
employees and partners, harmless, the Trust shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and it
is further understood that the Company will use all reasonable care to
identify and notify the Trust promptly concerning any situation which
presents or appears likely to present the probability of such a claim for
indemnification against the Trust. The Trust shall have the option to defend
them against any claim which may be subject to this indemnification. In the
event that the Trust so elects, it will so notify the parties and thereupon
the Trust shall take over complete defense of the claim with counsel
reasonably acceptable to the parties, and the parties shall in such situation
initiate no further legal or other expenses for which they shall seek
indemnification under this Article. An indemnified party shall in no case
confess any claim or make any compromise in any case in which the Trust will
be asked to indemnify the party except with the Trust's prior written consent.
4. INDEMNIFICATION BY THE COMPANY.
4.1 The Company shall indemnify the Trust and the Portfolios,
their officers and trustees and hold them harmless from and against any and all
actions, suits and claims, whether groundless or otherwise, and from and against
any and all losses, damages (excluding consequential, punitive or other indirect
damages), costs, charges, reasonable counsel fees and disbursements, payments,
expenses, and liabilities (including reasonable investigation expenses) arising
directly or indirectly out of the services rendered hereunder and arising or
based upon the willful misfeasance, bad faith, or negligence of the Company, its
partners, officers, employees, and agents in the performance of its or their
duties on behalf of the Trust and the Portfolios.
4.2 In order that the indemnification provision contained
herein shall apply, however, it is understood that if in any case the Company
may be asked to indemnify or hold the Trust and the Portfolios, their
officers, and trustees harmless, the Company shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and it
is further understood that the Trust and the Portfolios will use all
reasonable care to identify and notify the Company promptly concerning any
situation which presents or appears likely to present the probability of such
a claim for indemnification against the Company. The Company shall have the
option to defend the Trust against any claim which may be the subject to this
indemnification. In the event that the Company so elects, it will so notify
the Trust and thereupon the Company shall take over complete defense of the
claim with counsel reasonably acceptable to the parties, and the parties
shall in such situation initiate no further legal or other expenses for which
they shall seek indemnification under this Article. An indemnified party
shall in no case confess any claim or make any compromise in any case in
which the Company will be asked to indemnify the party except with the
Company's prior written consent.
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5. COMPENSATION AND EXPENSES.
5.1 The Trust will compensate the Company for the
Administrative Services at the rate of the lesser of (i) 0.10% of the Trust's
net assets, or (ii) the Company's costs for providing the Administrative
Services. Such fees do not include out-of-pocket and other third-party
disbursements of the Company for which the Trusts shall reimburse the Company
separately. The Company may at any time and from time to time waive any part
or all of any fee payable to it pursuant to this Agreement.
5.2 The fee shall accrue daily and the sum of the accruals
shall be paid monthly on or before the fifth (5th) business day of the month.
The fee for the period from the effective date of this Agreement with respect
to a Portfolio to the end of the initial month shall be prorated according to
the proportion that such period bears to the full month period. Upon any
termination of this Agreement before the end of any month, the fee for such
period shall be prorated according to the proportion which such period bears
to the full month period.
5.3 The Company, in its sole discretion, may from time to
time subcontract to, employ or associate with itself such person or persons
as the Company may believe to be particularly suited to assist it in
performing any of the services under this Agreement. Such person or persons
may be affiliates of the Company, third-party service providers, or officers
and employees who are employed by both the Company and the Trust; provided,
however, that the Company shall be as fully responsible to each Trust for the
acts and omissions of any such subcontractor as it is for its own acts and
omissions. Except as herein provided, the compensation of such person or
persons shall be paid by the Company and no obligation shall be incurred on
behalf of the Trust or the Portfolios in such respect.
6. ASSIGNMENT.
Except as provided herein, neither this Agreement nor any of the
rights or obligations under this Agreement may be assigned by either party
without the written consent of the other party.
7. TERM AND TERMINATION OF AGREEMENT.
This Agreement shall be effective on May 10, 1999, and shall
continue until for a two-year period. Thereafter, the Agreement will continue
annually, provided such continuance is specifically approved by a vote of a
majority of those members of the Board who are not "interested persons" of
any party to this Agreement, as such term is defined in the 1940 Act. This
Agreement may be terminated by any of the parties, without the payment of any
penalty, upon sixty (60) days' notice. The termination date for all original
or after-added Portfolios which are or become a party to this Agreement shall
be coterminous, except that Portfolios that merge or dissolve during the term
shall cease to be a party on the effective date of such merger or dissolution.
Should the Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and materials will be borne
by the Trust or the appropriate Portfolios.
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8. AMENDMENT.
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by a written agreement executed by both parties.
9. GOVERNING LAW.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of California.
10. NOTICES.
Except as otherwise specifically provided herein, notices and other
writings delivered or mailed postage prepaid to:
THE FUND: Xxxxxxxx-Xxxxxxxxx Mutual Trusts
000 Xxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxxx, XX 00000
THE COMPANY: Xxxxxxxx-Xxxxxxxxx Services Company
000 Xxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxxx, XX 00000
or to such other address as the Trust or the Company may hereafter specify,
shall be deemed to have been properly delivered or given hereunder.
11. COUNTERPARTS.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original.
12. MERGER OF AGREEMENT.
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject hereof
whether oral or written.
13. FORCE MAJEURE.
The Company shall have no liability for cessation of services
hereunder or any damages resulting therefrom to the Trust as a result of work
stoppage, power or other mechanical failure, natural disaster, governmental
action, communication disruption or other impossibility of performance.
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14. ASSIGNMENT; SUCCESSORS.
This Agreement shall not be assigned by either party without the prior
written consent of the other party. Nothing in this Article 14 shall prevent the
Company from delegating its responsibilities to another entity to the extent
provided herein.
15. SEVERABILITY.
In the event any provision of this Agreement is held illegal, void or
unenforceable, the balance shall remain in effect.
16. LIMITATIONS OF LIABILITY OF TRUSTEES AND SHAREHOLDERS OF THE TRUST.
The execution and delivery of this Agreement have been authorized by
the trustees of the Trust and signed by an authorized officer of the Trust,
acting as such, and neither such authorization by such trustees nor such
execution and delivery by such officer shall be deemed to have been made by
any of them individually or to impose any liability on any of them
personally, and the obligations of this Agreement are not binding upon any of
the trustees or shareholders of the Trust, but bind only the appropriate
property of the Trust, or any Portfolio, as provided in the Declaration of
Trust. The debts, liabilities and obligations with respect to each Portfolio
shall be enforceable against the assets and property of such Portfolio only,
and not against the assets and property of any other Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
THE TRUST THE COMPANY
XXXXXXXX-XXXXXXXXX XXXXXXXX-XXXXXXXXX
INSTITUTIONAL FUNDS CAPITAL MANAGEMENT
By: By:
Its: Its:
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